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PageID.2706\n PagePage\n 1 of 1 of 1\nAO 121 (Rev. 06/16)\nTO:\n\n Register of Copyrights REPORT ON THE\n U.S. Copyright Office FILING OR DETERMINATION OF AN\n 101 Independence Ave. S.E. ACTION OR APPEAL\n Washington, D.C. 20559-6000 REGARDING A COPYRIGHT\n\n\n\n In compliance with the provisions of 17 U.S.C. 508, you are hereby advised that a court action or appeal has been filed\non the following copyright(s):\n COURT NAME AND LOCATION\n ACTION APPEAL United States District Court for the District of Utah\nDOCKET NO. DATE FILED 351 S West Temple, Room 1.100\n 2:21-cv-00567-DBP 9/27/2021 Salt Lake City, UT 84101\nPLAINTIFF DEFENDANT\n\n GREAT BOWERY, d/b/a TRUNK BEST LITTLE SITES, d/b/a www.comicbookmovie.com;\n ARCHIVE NATHAN BEST; MARK CASSIDY and JOSHUA\n WILDING\n COPYRIGHT\n TITLE OF WORK AUTHOR OF WORK\n REGISTRATION NO.\n\n1 View Attached Complaint\n2\n\n3\n\n4\n\n5\n\n\n In the above-entitled case, the following copyright(s) have been included:\nDATE INCLUDED INCLUDED BY\n Amendment Answer Cross Bill Other Pleading\n COPYRIGHT\n TITLE OF WORK AUTHOR OF WORK\n REGISTRATION NO.\n\n1\n\n2\n\n3\n\n In the above-entitled case, a final decision was rendered on the date entered below. A copy of the order or judgment\ntogether with the written opinion, if any, of the court is attached.\nCOPY ATTACHED WRITTEN OPINION ATTACHED DATE RENDERED 01/06/2025\n Stipulation of Dismissal with\n Order Judgment Yes No prejudice was filed. The case has\n been dismissed w/prejudice per\n the terms of the stipulated\nCLERK (BY) DEPUTY CLERK DATE\n dismissal. No order attached.\n Gary P.Serdar 01/07/2025\n Kim Forsgren\n\n 1) Upon initiation of action, 2) Upon filing of document adding copyright(s), 3) Upon termination of action,\n mail copy to Register of Copyrights mail copy to Register of Copyrights mail copy to Register of Copyrights\nDISTRIBUTION:\n 4) In the event of an appeal, forward copy to Appellate Court 5) Case File Copy\n\f","ocr_status":2,"date_upload":"2025-07-05T18:06:23.569594-07:00","document_number":"130","attachment_number":null,"pacer_doc_id":"18306725901","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-03-10T13:43:24.651003-07:00","date_modified":"2025-07-05T18:09:25.854865-07:00","date_filed":"2025-01-07","time_filed":null,"entry_number":130,"recap_sequence_number":"2025-01-07.003","pacer_sequence_number":386,"description":"Report on the Final Decision of an action mailed to the Register of Copyrights Office. 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Magistrate Judge Jared C. Bennett no longer assigned to case. 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On January 6, 2025, the parties filed their 128 Stipulation of Dismissal with Prejudice. Under Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the Stipulated Dismissal with Prejudice is self-effectuating. The case has been dismissed with prejudice per the terms of the Stipulated Dismissal with each party to bear their own fees and costs. No order will follow. (kbm) (Entered: 01/07/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/418825114/","id":418825114,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/432652781/","id":432652781,"tags":[],"absolute_url":"/docket/60493772/128/great-bowery-v-best-little-sites/","date_created":"2025-03-10T13:43:24.255572-07:00","date_modified":"2025-07-06T03:13:32.503068-07:00","sha1":"bd0b218e77c6a499c5d3f4074e85293974e184ef","page_count":3,"file_size":154903,"filepath_local":"recap/gov.uscourts.utd.127764/gov.uscourts.utd.127764.128.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.utd.127764/gov.uscourts.utd.127764.128.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 2:21-cv-00567-DBB Document 128 Filed 01/06/25 PageID.2703 Page 1 of 3\n\n\n\n\nMathew K. Higbee, Esq.\nHIGBEE & ASSOCIATES\n3110 W. Cheyenne #200 N.\nLas Vegas, NV 89032\n(714) 617-8373\n(714) 597-6559 facsimile\nEmail: mhigbee@higbee.law\n Attorney for Plaintiff Great Bowery d/b/a Trunk Archive\n\n\n UNITED STATES DISTRICT COURT\n DISTRICT OF UTAH\n\n\n GREAT BOWERY, d/b/a TRUNK ARCHIVE\n JOINT STIPULATION OF\n Plaintiff, VOLUNTARY DISMISSAL WITH\n PREJUDICE PURSUANT TO F.R.C.P.\n vs. 41(a)(1)(A)(ii)\n (DKT. 128)\n\n BEST LITTLE SITES, d/b/a Case No. 2:21-cv-00567-DBP\n www.comicbookmovie.com; NATHAN BEST;\n MARK CASSIDY; JOSHUA WILDING; and District Judge David Barlow\n DOES 1 through 10.\n Magistrate Judge Jared C. Bennett\n Defendants.\n\n\n Pursuant to F.R.C.P. 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, the Plaintiff\n Great Bowery Inc d/b/a Trunk Archive, hereby give notice that the above captioned action is\n voluntarily dismissed against the Defendants Best Little Sites d/b/a www.comicbookmovie.com;\n Nathan Best; Mark Cassidy; Joshua Wilding; and DOES 1 through 10, inclusive, with prejudice,\n and with each side to bear their own costs.\n\n\n\n\n 1\n\fCase 2:21-cv-00567-DBB Document 128 Filed 01/06/25 PageID.2704 Page 2 of 3\n\n\n\n\n DATE: January 6, 2025 LAW FIRM OF HIGBEE & ASSOCIATES\n\n\n /s/ Mathew K. Higbee\n Mathew K. Higbee\n\n Attorneys for Plaintiff Great Bowery, d/b/a\n Trunk Archive\n\n\n\n\n WALKER LAW PLLC\n\n /s/ Robert E. Aycock\n Robert E. Aycock\n\n Attorney for Defendants\n ComicBookMovie.com, Nathan Best, Mark\n Cassidy, and Joshua Wilding\n\n (Signed by filing attorney with permission)\n\n\n\n\n 2\n\fCase 2:21-cv-00567-DBB Document 128 Filed 01/06/25 PageID.2705 Page 3 of 3\n\n\n\n\n CERTIFICATE OF SERVICE\n\n I hereby certify that on January 2, 2025, I caused a true and correct copy of the foregoing\n\n STIPULATION OF DISMISSAL (DKT. 128) to be filed via the Court\u2019s CM/ECF system which\n\n directed service by email on all counsel of record.\n\n\n\n /s/ Mathew K. 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On December 13, 2024, the parties filed 126 Notice of Settlement. Based on the Notice, any deadlines that have previously been ordered are stayed. The parties are ordered to file a status report no later than January 13, 2025, if no dismissal documents have been filed. No attached document. Signed by Judge David Barlow on 12/16/24. (kbm) (Entered: 12/16/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/412008391/","id":412008391,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/425250160/","id":425250160,"tags":[],"absolute_url":"/docket/60493772/126/great-bowery-v-best-little-sites/","date_created":"2024-12-26T09:28:07.048034-08:00","date_modified":"2025-07-07T02:30:52.905396-07:00","sha1":"b0b49218c826dca4ec40335d5f952993fb6a1035","page_count":3,"file_size":37108,"filepath_local":"recap/gov.uscourts.utd.127764/gov.uscourts.utd.127764.126.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.utd.127764/gov.uscourts.utd.127764.126.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 2:21-cv-00567-DBB Document 126 Filed 12/13/24 PageID.2700 Page 1 of 3\n\n\n\n\nMathew K. Higbee, Esq.\nHIGBEE & ASSOCIATES\n3110 W. Cheyenne #200 N.\nLas Vegas, NV 89032\n(714) 617-8373\n(714) 597-6559 facsimile\nEmail: mhigbee@higbee.law\n Attorney for Plaintiff Great Bowery d/b/a Trunk Archive\n\n\n UNITED STATES DISTRICT COURT\n DISTRICT OF UTAH\n\n\n GREAT BOWERY, d/b/a TRUNK ARCHIVE\n\n Plaintiff, STIPULATED OF SETTLEMENT\n (DKT. 126)\n vs.\n Case No. 2:21-cv-00567-DBP\n\n BEST LITTLE SITES, d/b/a District Judge David Barlow\n www.comicbookmovie.com; NATHAN BEST;\n MARK CASSIDY; JOSHUA WILDING; and Magistrate Judge Jared C. Bennett\n DOES 1 through 10.\n\n Defendants.\n\n\n TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:\n PLEASE TAKE NOTICE that Plaintiff and Defendant have reached a settlement in\n principle in the above-referenced case. The Parties are currently finalizing a settlement agreement\n and the Parties request that the Court stay all upcoming deadlines and allow the parties 30 days in\n which to finalize the agreement and perform their obligations, at which time Plaintiff will file a\n dismissal.\n\n\n\n DATE: December 13, 2024\n\n\n LAW FIRM OF HIGBEE & ASSOCIATES\n\n\n 1\n\fCase 2:21-cv-00567-DBB Document 126 Filed 12/13/24 PageID.2701 Page 2 of 3\n\n\n\n\n /s/ Mathew K. Higbee\n Mathew K. Higbee\n\n Attorneys for Plaintiff Great Bowery, d/b/a\n Trunk Archive\n\n\n\n\n WALKER LAW PLLC\n\n /s/ Robert E. Aycock\n Robert E. Aycock\n Tanner G. Reber\n\n Attorneys for Defendants\n ComicBookMovie.com, Nathan Best, Mark\n Cassidy, and Joshua Wilding\n\n (Signed by filing attorney with permission)\n\n\n\n\n 2\n\fCase 2:21-cv-00567-DBB Document 126 Filed 12/13/24 PageID.2702 Page 3 of 3\n\n\n\n\n CERTIFICATE OF SERVICE\n\n I hereby certify that on December 13, 2024, I caused a true and correct copy of the\n\n foregoing STIPULATION OF DISMISSAL (DKT. 126) to be filed via the Court\u2019s CM/ECF\n\n system which directed service by email on all counsel of record.\n\n\n\n /s/ Mathew K. 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District Judge David Barlow will handle the motion. (kbm) (Entered: 11/26/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/412008389/","id":412008389,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/425250158/","id":425250158,"tags":[],"absolute_url":"/docket/60493772/121/great-bowery-v-best-little-sites/","date_created":"2024-12-26T09:28:06.835525-08:00","date_modified":"2025-07-05T18:09:25.493383-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"121","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-12-26T09:28:06.809361-08:00","date_modified":"2025-07-05T18:09:25.481782-07:00","date_filed":"2024-10-30","time_filed":null,"entry_number":121,"recap_sequence_number":"2024-10-30.001","pacer_sequence_number":null,"description":"Motion No Longer Referred: 120 Stipulated Motion for Extension of Time to File Joint Brief. District Judge David Barlow will handle the motion. (kbm) (Entered: 10/30/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/412008388/","id":412008388,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/425250157/","id":425250157,"tags":[],"absolute_url":"/docket/60493772/119/great-bowery-v-best-little-sites/","date_created":"2024-12-26T09:28:05.984858-08:00","date_modified":"2025-07-05T18:09:25.421916-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"119","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-12-26T09:28:05.965109-08:00","date_modified":"2025-07-05T18:09:25.410632-07:00","date_filed":"2024-10-08","time_filed":null,"entry_number":119,"recap_sequence_number":"2024-10-08.001","pacer_sequence_number":null,"description":"DOCKET TEXT ORDER. The court anticipates being able to provide the parties with a trial in this case and 2:21-cv-567 Great Bowery v. Best Little Sites in the coming months. The court's initial impression is that these cases should be tried together. The parties are ordered to meet and confer and submit a joint brief by October 31, 2024 containing the following specific information: (1) whether the parties have a different view about trying these cases together; (2) the name of each anticipated witness; (3) the topics each witness is anticipated to cover; (4) the approximate amount of trial time needed for each witness; and (5) the number of trial days the parties anticipate needing for a joint trial. To the extent that the parties disagree, they may so indicate. After reviewing the parties' submission, the court will further address trial scheduling. Signed by Judge David Barlow on 10/8/2024. (tcs) (Entered: 10/08/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/411159810/","id":411159810,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/424110898/","id":424110898,"tags":[],"absolute_url":"","date_created":"2024-12-16T09:21:04.882781-08:00","date_modified":"2024-12-16T09:21:04.888657-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order","acms_document_guid":""}],"date_created":"2024-12-16T09:21:04.874350-08:00","date_modified":"2024-12-16T09:21:04.874365-08:00","date_filed":"2024-12-16","time_filed":"09:40:37","entry_number":null,"recap_sequence_number":"2024-12-16.001","pacer_sequence_number":null,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/409464828/","id":409464828,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/421843227/","id":421843227,"tags":[],"absolute_url":"/docket/60493772/125/great-bowery-v-best-little-sites/","date_created":"2024-11-26T10:44:21.933004-08:00","date_modified":"2025-07-05T18:09:25.633863-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"125","attachment_number":null,"pacer_doc_id":"18306688264","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Motion for Extension of Time","acms_document_guid":""}],"date_created":"2024-11-26T10:44:21.919776-08:00","date_modified":"2025-07-05T18:09:25.619646-07:00","date_filed":"2024-11-26","time_filed":"11:05:47","entry_number":125,"recap_sequence_number":"2024-11-26.002","pacer_sequence_number":372,"description":"ORDER granting 123 Motion for Extension of Time to file brief. Joint Brief on or before December 14, 2024. Signed by Judge David Barlow on 11/26/2024. (kpf) (Entered: 11/26/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/409365877/","id":409365877,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/421709027/","id":421709027,"tags":[],"absolute_url":"/docket/60493772/123/great-bowery-v-best-little-sites/","date_created":"2024-11-25T13:36:42.013102-08:00","date_modified":"2025-07-07T02:07:56.324147-07:00","sha1":"3906a5699769fb2be50fdcd6ab191f6a93066e76","page_count":3,"file_size":157312,"filepath_local":"recap/gov.uscourts.utd.127764/gov.uscourts.utd.127764.123.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.utd.127764/gov.uscourts.utd.127764.123.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 2:21-cv-00567-DBB Document 123 Filed 11/25/24 PageID.2695 Page 1 of 3\n\n\n\n\nMathew K. Higbee, Esq.\nHIGBEE & ASSOCIATES\n3110 W. Cheyenne #200 N.\nLas Vegas, NV 89032\n(714) 617-8373\n(714) 597-6559 facsimile\nEmail: mhigbee@higbee.law\n Attorney for Plaintiff Great Bowery d/b/a Trunk Archive\n\n\n UNITED STATES DISTRICT COURT\n DISTRICT OF UTAH\n\n\n GREAT BOWERY, d/b/a TRUNK ARCHIVE\n STIPULATED MOTION FOR\n Plaintiff, EXTENSION OF TIME TO FILE\n JOINT BRIEF (DKT. 119)\n vs.\n Case No. 2:21-cv-00567-DBP\n BEST LITTLE SITES, d/b/a\n www.comicbookmovie.com; NATHAN BEST; District Judge David Barlow\n MARK CASSIDY; JOSHUA WILDING; and\n DOES 1 through 10. Magistrate Judge Jared C. Bennett\n\n Defendants.\n\n\n Plaintiff and Defendants stipulate to extend the deadline for the Parties to file a joint brief as\n\n requested by the Court on October 8, 2024 (Dkt. 119). The current deadline for the joint brief is\n\n November 30, 2024. The Parties previously stipulated to extend the deadline by 30 days (Dkt. 120).\n\n The Parties stipulate to extend the deadline to file the joint brief to December 14, 2024. The Parties\n\n are still engaged in settlement discussions and believe that a 14-day extension will allow the Parties\n\n additional time to determine if this matter can settle without trial and prepare the necessary documents\n\n for either settlement or proceeding with the requested brief.\n\n\n\n\n 1\n\fCase 2:21-cv-00567-DBB Document 123 Filed 11/25/24 PageID.2696 Page 2 of 3\n\n\n\n\n DATE: November 25, 2024\n\n\n LAW FIRM OF HIGBEE & ASSOCIATES\n\n /s/ Mathew K. Higbee\n Mathew K. Higbee\n\n Attorneys for Plaintiff Great Bowery, d/b/a\n Trunk Archive\n\n\n\n\n WALKER LAW PLLC\n\n /s/ Robert E. Aycock\n Robert E. Aycock\n Tanner G. Reber\n\n Attorneys for Defendants\n ComicBookMovie.com, Nathan Best, Mark\n Cassidy, and Joshua Wilding\n\n (Signed by filing attorney with permission)\n\n\n\n\n 2\n\fCase 2:21-cv-00567-DBB Document 123 Filed 11/25/24 PageID.2697 Page 3 of 3\n\n\n\n\n CERTIFICATE OF SERVICE\n\n I hereby certify that on November 25, 2024, I caused a true and correct copy of the\n\n foregoing STIPULATED MOTION FOR EXTENSION OF TIME TO FILE THE JOINT\n\n BRIEF (DKT. 120) to be filed via the Court\u2019s CM/ECF system which directed service by email\n\n on all counsel of record.\n\n\n\n /s/ Mathew K. Higbee\n\n\n\n\n 3\n\f","ocr_status":2,"date_upload":"2025-07-05T18:07:25.380801-07:00","document_number":"123","attachment_number":null,"pacer_doc_id":"18306687177","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Extension of Time","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/444806784/","id":444806784,"tags":[],"absolute_url":"/docket/60493772/123/1/great-bowery-v-best-little-sites/","date_created":"2025-07-05T18:07:21.775135-07:00","date_modified":"2025-07-05T18:09:25.554530-07:00","sha1":"","page_count":1,"file_size":72912,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"123","attachment_number":1,"pacer_doc_id":"18306687178","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Proposed Order","acms_document_guid":""}],"date_created":"2024-11-25T13:36:41.995309-08:00","date_modified":"2025-07-05T18:09:25.526379-07:00","date_filed":"2024-11-25","time_filed":"14:16:20","entry_number":123,"recap_sequence_number":"2024-11-25.001","pacer_sequence_number":367,"description":"Stipulated MOTION for Extension of Time TO FILE JOINT BRIEF (DKT. 119) filed by Plaintiff Great Bowery. (Attachments: # 1 Proposed Order) Motions referred to Jared C. Bennett.(Higbee, Mathew) (Entered: 11/25/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/406704138/","id":406704138,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/418094841/","id":418094841,"tags":[],"absolute_url":"/docket/60493772/122/great-bowery-v-best-little-sites/","date_created":"2024-10-30T14:07:41.354592-07:00","date_modified":"2025-07-08T02:20:01.609052-07:00","sha1":"f372345a5bff5f744e308f9915036f0297316be8","page_count":1,"file_size":131377,"filepath_local":"recap/gov.uscourts.utd.127764/gov.uscourts.utd.127764.122.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.utd.127764/gov.uscourts.utd.127764.122.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 2:21-cv-00567-DBB Document 122 Filed 10/30/24 PageID.2694 Page 1 of 1\n\n\n\n\n THE UNITED STATES DISTRICT COURT\n DISTRICT OF UTAH\n\n ORDER GRANTING [120]\n GREAT BOWERY, STIPULATED MOTION FOR\n Plaintiff, EXTENSION OF TIME TO FILE\n JOINT BRIEF\n vs.\n BEST LITTLE SITES, et al, Civil No. 2:21-cv-00567-DBB-JCB\n Defendants.\n Judge David Barlow\n\n\n Before the court is the parties\u2019 Stipulated Motion1 for Extension of Time to File Joint Brief.\n\n Based upon the briefing and for good cause appearing, the court hereby GRANTS the Motion and\n\n ORDERS that the parties shall file their Joint Brief by November 30, 2024.\n\n Signed October 30, 2024.\n\n BY THE COURT:\n\n\n David Barlow\n United States District Court Judge\n\n\n\n\n 1\n ECF No. 120.\n\f","ocr_status":2,"date_upload":"2025-07-05T18:07:10.294822-07:00","document_number":"122","attachment_number":null,"pacer_doc_id":"18306661663","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Motion for Extension of Time","acms_document_guid":""}],"date_created":"2024-10-30T14:07:41.321981-07:00","date_modified":"2025-07-05T18:09:25.504377-07:00","date_filed":"2024-10-30","time_filed":"14:05:50","entry_number":122,"recap_sequence_number":"2024-10-30.002","pacer_sequence_number":365,"description":"ORDER granting 120 Motion for Extension of Time to file Joint Brief. The parties shall file their Joint Brief by November 30, 2024. Signed by Judge David Barlow on 10/30/2024. (kpf) (Entered: 10/30/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/406565806/","id":406565806,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/417902257/","id":417902257,"tags":[],"absolute_url":"/docket/60493772/120/great-bowery-v-best-little-sites/","date_created":"2024-10-29T13:09:05.490998-07:00","date_modified":"2025-07-07T02:07:57.279069-07:00","sha1":"ec85f0c7f993fb55f303fca55aa2d2e11d01c932","page_count":3,"file_size":146810,"filepath_local":"recap/gov.uscourts.utd.127764/gov.uscourts.utd.127764.120.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.utd.127764/gov.uscourts.utd.127764.120.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Mathew K. Higbee, Esq.\nHIGBEE & ASSOCIATES\n3110 W. Cheyenne #200 N.\nLas Vegas, NV 89032\n(714) 617-8373\n(714) 597-6559 facsimile\nEmail: mhigbee@higbee.law\nAttorney for Plaintiff Great Bowery d/b/a Trunk Archive\n\n\n UNITED STATES DISTRICT COURT\n DISTRICT OF UTAH\n\n\n GREAT BOWERY, d/b/a TRUNK ARCHIVE\n STIPULATED MOTION FOR\n Plaintiff, EXTENSION OF TIME TO FILE\n JOINT BRIEF (DKT. 119)\n vs.\n Case No. 2:21-cv-00567-DBP\n BEST LITTLE SITES, d/b/a\n www.comicbookmovie.com; NATHAN BEST; District Judge David Barlow\n MARK CASSIDY; JOSHUA WILDING; and\n DOES 1 through 10. Magistrate Judge Jared C. Bennett\n\n Defendants.\n\n\n Plaintiff and Defendants stipulate to extend the deadline for the Parties to file a joint brief as\n\nrequested by the Court on October 8, 2024 (Dkt. 119). The current deadline for the joint brief is\n\nOctober 31, 2024. The parties stipulate to extend the deadline to file the joint brief to November 30,\n\n2024. The Parties are currently engaged in settlement discussions and believe that a 30-day extension\n\nwill allow the Parties adequate time to determine if this matter can settle without trial.\n\n\n\n\n 1\n\fDATE: October 29, 2024\n\n\n LAW FIRM OF HIGBEE & ASSOCIATES\n\n /s/ Mathew K. Higbee\n Mathew K. Higbee\n\n Attorneys for Plaintiff Great Bowery, d/b/a\n Trunk Archive\n\n\n\n\n WALKER LAW PLLC\n\n /s/ Robert E. Aycock\n Robert E. Aycock\n Tanner G. Reber\n\n Attorneys for Defendants\n ComicBookMovie.com, Nathan Best, Mark\n Cassidy, and Joshua Wilding\n\n (Signed by filing attorney with permission)\n\n\n\n\n 2\n\f CERTIFICATE OF SERVICE\n\n I hereby certify that on October 29, 2024, I caused a true and correct copy of the foregoing\n\nSTIPULATED MOTION FOR EXTENSION OF TIME TO FILE THE JOINT BRIEF\n\n(DKT. 120) to be filed via the Court\u2019s CM/ECF system which directed service by email on all\n\ncounsel of record.\n\n\n\n /s/ Mathew K. Higbee\n\n\n\n\n 3\n\f","ocr_status":2,"date_upload":"2025-07-05T18:07:05.916083-07:00","document_number":"120","attachment_number":null,"pacer_doc_id":"18306659671","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Extension of Time","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/444806782/","id":444806782,"tags":[],"absolute_url":"/docket/60493772/120/1/great-bowery-v-best-little-sites/","date_created":"2025-07-05T18:07:00.525971-07:00","date_modified":"2025-07-05T18:09:25.459298-07:00","sha1":"","page_count":1,"file_size":75063,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"120","attachment_number":1,"pacer_doc_id":"18306659672","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Proposed Order Granting Extension of Time to File Joint Brief","acms_document_guid":""}],"date_created":"2024-10-29T13:09:05.477377-07:00","date_modified":"2025-07-05T18:09:25.434198-07:00","date_filed":"2024-10-29","time_filed":"13:09:36","entry_number":120,"recap_sequence_number":"2024-10-29.001","pacer_sequence_number":360,"description":"Stipulated MOTION for Extension of Time to File Joint Brief filed by Plaintiff Great Bowery. (Attachments: # 1 Proposed Order Granting Extension of Time to File Joint Brief) Motions referred to Jared C. Bennett.(Higbee, Mathew) (Entered: 10/29/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/404600906/","id":404600906,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/415231493/","id":415231493,"tags":[],"absolute_url":"","date_created":"2024-10-08T13:05:50.845265-07:00","date_modified":"2024-10-08T13:05:50.849694-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order","acms_document_guid":""}],"date_created":"2024-10-08T13:05:50.834484-07:00","date_modified":"2024-10-08T13:05:50.834497-07:00","date_filed":"2024-10-08","time_filed":"14:04:10","entry_number":null,"recap_sequence_number":"2024-10-08.001","pacer_sequence_number":null,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/398882465/","id":398882465,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/408079432/","id":408079432,"tags":[],"absolute_url":"/docket/60493772/117/great-bowery-v-best-little-sites/","date_created":"2024-08-08T13:54:32.624283-07:00","date_modified":"2025-07-05T18:09:25.368318-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"117","attachment_number":null,"pacer_doc_id":"18306536793","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-08-08T13:54:32.609581-07:00","date_modified":"2025-07-05T18:09:25.358349-07:00","date_filed":"2024-07-01","time_filed":null,"entry_number":117,"recap_sequence_number":"2024-07-01.001","pacer_sequence_number":352,"description":"Sur-reply REPLY to Response to Motion re 102 MOTION for Summary Judgment and Memorandum in Support of Defendants' Response to Plaintiff's Request for Reconsideration filed by Counter Claimants Nathan Best, Best Little Sites, Defendants Nathan Best, Best Little Sites, Mark Cassidy, Joshua Wilding. (Aycock, Robert) (Entered: 07/01/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/398882464/","id":398882464,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/425250156/","id":425250156,"tags":[],"absolute_url":"/docket/60493772/114/great-bowery-v-best-little-sites/","date_created":"2024-12-26T09:28:05.786390-08:00","date_modified":"2025-07-05T18:09:25.155640-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"114","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-08-08T13:54:32.514789-07:00","date_modified":"2025-07-05T18:09:25.142899-07:00","date_filed":"2024-06-11","time_filed":null,"entry_number":114,"recap_sequence_number":"2024-06-11.001","pacer_sequence_number":null,"description":"DOCKET TEXT ORDER. No attached document. The court is in receipt of the parties' briefing regarding Plaintiff's 102 Motion for Summary Judgment. On reply, Plaintiff raised for the first time the argument that the court should reconsider its ruling on the issue of embedding. See ECF No. 110, at 2 to 3. Because Defendants did not have an opportunity to respond to this argument, the court grants Defendants 14 days from the date of this order to file such a response. Signed by Judge David Barlow on 6/11/2024. (jal) (Entered: 06/11/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/398882463/","id":398882463,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/408079430/","id":408079430,"tags":[],"absolute_url":"/docket/60493772/113/great-bowery-v-best-little-sites/","date_created":"2024-08-08T13:54:32.498824-07:00","date_modified":"2025-07-05T18:09:25.131789-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"113","attachment_number":null,"pacer_doc_id":"18306476852","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-08-08T13:54:32.481918-07:00","date_modified":"2025-07-05T18:09:25.115585-07:00","date_filed":"2024-05-07","time_filed":null,"entry_number":113,"recap_sequence_number":"2024-05-07.001","pacer_sequence_number":342,"description":"NOTICE of Appearance by Robert E. Aycock on behalf of Best Little Sites (Aycock, Robert) (Entered: 05/07/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/398882462/","id":398882462,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/408079429/","id":408079429,"tags":[],"absolute_url":"/docket/60493772/112/great-bowery-v-best-little-sites/","date_created":"2024-08-08T13:54:32.444677-07:00","date_modified":"2025-07-05T18:09:25.070647-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"112","attachment_number":null,"pacer_doc_id":"18306474771","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/444806819/","id":444806819,"tags":[],"absolute_url":"/docket/60493772/112/1/great-bowery-v-best-little-sites/","date_created":"2025-07-05T18:09:21.483441-07:00","date_modified":"2025-07-05T18:09:25.089032-07:00","sha1":"","page_count":1,"file_size":134388,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"112","attachment_number":1,"pacer_doc_id":"18306474772","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit Exhibit A","acms_document_guid":""}],"date_created":"2024-08-08T13:54:32.424568-07:00","date_modified":"2025-07-05T18:09:25.060989-07:00","date_filed":"2024-05-03","time_filed":null,"entry_number":112,"recap_sequence_number":"2024-05-03.001","pacer_sequence_number":339,"description":"NOTICE of RECENT ORDER FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DENYING EN BANC PETITION TO RECONSIDER SERVER TEST by Nathan Best, Best Little Sites, Mark Cassidy, Joshua Wilding re 110 Reply Memorandum/Reply to Response to Motion (Attachments: # 1 Exhibit Exhibit A) (Aycock, Robert) (Entered: 05/03/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/396505681/","id":396505681,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/60493772/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/405654601/","id":405654601,"tags":[],"absolute_url":"/docket/60493772/118/great-bowery-v-best-little-sites/","date_created":"2024-07-15T16:09:30.034897-07:00","date_modified":"2025-07-05T18:09:25.393865-07:00","sha1":"b59edf748f863c96a53e7dede26713e6f9762914","page_count":41,"file_size":412674,"filepath_local":"recap/gov.uscourts.utd.127764/gov.uscourts.utd.127764.118.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.utd.127764/gov.uscourts.utd.127764.118.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2649 Page 1 of 41\n\n\n\n\n THE UNITED STATES DISTRICT COURT\n DISTRICT OF UTAH\n\n\n GREAT BOWERY, d/b/a TRUNK MEMORANDUM DECISION AND\n ARCHIVE, ORDER GRANTING IN PART AND\n DENYING IN PART [102] PLAINTIFF\u2019S\n Plaintiff, MOTION FOR SUMMARY JUDGMENT\n\n v. Case No. 2:21-cv-00567-DBB-JCB\n\n BEST LITTLE SITES, d/b/a District Judge David Barlow\n www.comicbookmovie.com; NATHAN\n BEST; MARK CASSIDY; JOSHUA\n WILDING; and DOES 1 through 10,\n inclusive,\n\n Defendants.\n\n\n\n In this case, Plaintiff Great Bowery, d/b/a Trunk Archive (\u201cTrunk Archive\u201d) alleges that\n\n Defendants Best Little Sites, d/b/a www.comicbookmovie.com (\u201cCBM\u201d), Nathan Best, Mark\n\n Cassidy, and Joshua Wilding infringed its copyright of various photographs taken by Annie\n\n Leibovitz. 1 Now, Truck Archive moves for summary judgment on its claim, Defendants\u2019\n\n counterclaim, Defendants\u2019 affirmative defenses, and on the issue of damages. 2 For the following\n\n reasons, the court grants Trunk Archive\u2019s motion in part and denies it in part.\n\n BACKGROUND\n\n In 2014, Ms. Annie Leibovitz entered into an agreement with Trunk Archive, under\n\n which Ms. Leibovitz granted Trunk Archive \u201cthe exclusive worldwide right to license, market,\n\n\n\n\n 1\n Compl. \u00b6\u00b6 77\u201385, ECF No. 2.\n 2\n Mot. for Summ. J. (\u201cPl.\u2019s Mot.\u201d), ECF No. 102.\n\n 1\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2650 Page 2 of 41\n\n\n\n\n and promote\u201d those images that she provided to Trunk Archive. 3 This \u201cArtist Agreement\u201d was\n\n signed on behalf of Ms. Leibovitz by her manager. 4 Between 2014 and 2019, Ms. Leibovitz\n\n created a series of photographs of the cast and crew of the films Star Wars: The Last Jedi and\n\n Star Wars: The Rise of Skywalker. 5 Ms. Leibovitz registered these photographs with the U.S.\n\n Copyright Office. 6 On May 24, 2017, Vanity Fair published an article containing the\n\n photographs from The Last Jedi. 7 Ms. Leibovitz then provided these photographs to Trunk\n\n Archive. 8 This set of photographs includes the following: a photograph of actress Laura Dern as\n\n Vice Admiral Amilyn Holdo (\u201cHoldo Photograph\u201d) 9; a photograph of actor Benicio Del Toro as\n\n DJ (\u201cDJ Photograph\u201d) 10; a photograph of actor Mark Hamill and actress Carrie Fisher as Luke\n\n Skywalker and Leia Organa respectively (\u201cSkywalker Photograph\u201d) 11; a photograph of actresses\n\n Carrie Fisher and Billie Lourd as Leia Organa and Kaydel Ko Connix respectively (\u201cConnix\n\n Photograph\u201d) 12; and a photograph of actors Oscar Isaac, John Boyega, and Kelly Marie Tran as\n\n Poe Dameron, Finn, and Rose Tico respectively (\u201cDameron Photograph\u201d). 13\n\n Next, on May 22, 2019, Vanity Fair published an article containing the photographs from\n\n The Rise of Skywalker. 14 Ms. Leibovitz then provided this second set of photographs to Trunk\n\n\n 3\n Decl. of Annie Leibovitz (\u201cLeibovitz Decl.\u201d) \u00b6 21, ECF No. 102-1 Ex. 42; Artist Agreement \u00b6\u00b6 1\u20132, ECF No. 104.\n 4\n Artist Agreement; Leibovitz Decl. \u00b6 23.\n 5\n Leibovitz Decl. \u00b6\u00b6 3\u201314.\n 6\n See id. \u00b6\u00b6 16\u201320; Copyright Registration No. VA 2-111-252 (July 10, 2017), ECF No. 102-1 Ex. 12; Copyright\n Registration No. VA 2-192-380 (Jan. 16, 2020), ECF No. 102-1 Ex. 13.\n 7\n Leibovitz Decl. \u00b6 24; see also See Annie Leibovitz\u2019s Exclusive Cast Portraits of Star Wars: The Last Jedi for\n Vanity Fair, ECF No. 102-1 Ex. 15.\n 8\n Leibovitz Decl. \u00b6 27.\n 9\n Id. \u00b6 4; Holdo Photograph, ECF No. 102-1 Ex. 1.\n 10\n Leibovitz Decl. \u00b6 5; DJ Photograph, ECF No. 102-1 Ex. 2.\n 11\n Leibovitz Decl. \u00b6 6; Skywalker Photograph, ECF No. 102-1 Ex. 3.\n 12\n Leibovitz Decl. \u00b6 7; Connix Photograph, ECF No. 102-1 Ex. 4.\n 13\n Leibovitz Decl. \u00b6 14; Dameron Photograph, ECF No. 102-1 Ex. 11.\n 14\n Leibovitz Decl. \u00b6 28; Star Wars: The Rise of Skywalker Photos: Meet the Characters and Go on Set, ECF No. 102-\n 1 Ex. 16.\n\n 2\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2651 Page 3 of 41\n\n\n\n\n Archive. 15 This set of photographs includes: a photograph of actors Oscar Isaac and Billy Dee\n\n Williams as, respectively, Poe Dameron and Lando Calrissian aboard the Millennium Falcon\n\n (\u201cMillennium Falcon Photograph\u201d) 16; a photograph of actor Mark Hamill as Luke Skywalker\n\n with R2-D2 (\u201cR2-D2 Photograph\u201d) 17; a photograph of actor John Boyega and actress Naomi\n\n Ackie as Finn and Jannah respectively (\u201cFinn Photograph\u201d) 18; a photograph of actors Domhnall\n\n Gleeson and Richard E. Grant as General Hux and Allegiant General Pryde respectively (\u201cHux\n\n Photograph\u201d) 19; a photograph of actor Adam Driver and actress Daisy Ridley as Kylo Ren and\n\n Rey fighting with lightsabers (\u201cLightsaber Photograph\u201d) 20; and a series of eight photographs of\n\n the production of Star Wars: The Rise of Skywalker (\u201cProduction Photographs\u201d). 21 The court will\n\n refer to both sets of photographs as the \u201cStar Wars Photographs.\u201d\n\n CBM owns and operates a website, www.comicbookmovie.com, that features articles and\n\n editorials about science fiction movies, among other things. 22 Mr. Best owns CBM. 23 Articles\n\n and editorials on CBM\u2019s website are all user-generated. 24 Mr. Best \u201chas the ability to view all\n\n content posted on the website and all content queued for future posts,\u201d including the ability to\n\n\n\n\n 15\n Leibovitz Decl. \u00b6 31.\n 16\n Id. \u00b6 8; Millennium Falcon Photograph, ECF No. 102-1 Ex. 5.\n 17\n Leibovitz Decl. \u00b6 9; R2-D2 Photograph, ECF No. 102-1 Ex. 6.\n 18\n Leibovitz Decl. \u00b6 10; Finn Photograph, ECF No. 102-1 Ex. 7.\n 19\n Leibovitz Decl. \u00b6 11; Hux Photograph, ECF No. 102-1 Ex. 8.\n 20\n Leibovitz Decl. \u00b6 13; Lightsaber Photograph, ECF No. 102-1 Ex. 10\n 21\n Leibovitz Decl. \u00b6 12; Production Photographs, ECF No. 102-1 Ex. 9.\n 22\n See Answer & Counterclaim (\u201cCBM\u2019s and Best\u2019s Answer & Counterclaim\u201d) \u00b6\u00b6 25, 27, ECF No. 49.\n 23\n Id. \u00b6 26.\n 24\n Decl. of Nathan Best in Support of Defs.\u2019 Opp\u2019n to Pl.\u2019s Mot. for Summ. J (\u201cBest Decl.\u201d) \u00b6 5, ECF No. 109-1 Ex.\n A.\n\n 3\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2652 Page 4 of 41\n\n\n\n\n \u201cedit the content of any post or delete any post.\u201d 25 Both Mr. Cassidy and Mr. Wilding have the\n\n ability to create content for CBM\u2019s website. 26\n\n Between October 2017 and January 2020, CBM published 15 articles that contained the\n\n various individual images from the Star Wars Photographs. 27 Nine articles were authored by Mr.\n\n Cassidy and six were authored by Mr. Wilding. 28 However, each of the 15 articles at issue\n\n incorporated the given photograph by utilizing HTML code that directed the webpage to a server\n\n where the given image was stored, which caused the image to appear in the article hosted on\n\n CBM\u2019s website. 29 This process is called \u201cembedding.\u201d Generally, the articles discussed bits of\n\n\n 25\n Def. Nathan Best\u2019s Responses to Pl.\u2019s First Set of Interrogatories 3, ECF No. 102-1 Ex. 38.\n 26\n See CBM\u2019s and Best\u2019s Answer \u00b6\u00b6 44, 55; Def. Mark Cassidy\u2019s Answer to Compl. (\u201cCassidy\u2019s Answer\u201d) \u00b6 44,\n ECF No. 55; Def. Joshua Wilding\u2019s Answer to Compl. (\u201cWilding\u2019s Answer\u201d) \u00b6 55, ECF No. 56.\n 27\n \u201cSTAR WARS: THE LAST JEDI Actress Laura Dern Shares New Image of Vice Admiral Amilyn Holdo,\u201d ECF\n No. 102-1 Ex. 21 (using the Holdo Photograph); \u201cSTAR WARS: THE LAST JEDI International TV Spot Features\n Benicio Del Toro As the Mysterious DJ,\u201d ECF No. 102-1 Ex. 22 (using the DJ Photograph); \u201cSTAR WARS: THE\n LAST JEDI\u2019s Mark Hamill Shares a Lovely Tribute to Carrie Fisher One Year After Her Passing,\u201d ECF No. 102-1\n Ex. 23 (using the Skywalker Photograph); \u201cBillie Lourd Shares A Touching Tribute to Carrie Fisher On the Second\n Anniversary of Her Passing,\u201d ECF No. 102-1 Ex. 24 (using the Connix Photograph); \u201cSTAR WARS: THE RISE OF\n SKYWALKER \u2013 12 Biggest Reveals and Spoilers From Vanity Fair\u2019s Cover Story,\u201d ECF No. 102-1 Ex. 25 (using\n the Millennium Falcon photograph); \u201cSTAR WARS: THE RISE OF SKYWALKER Behind The Scenes Videos\n Features New Aliens And Cast Interviews,\u201d ECF No. 102-1 Ex. 26 (using the R2-D2 Photograph, Production\n Photographs, Finn Photograph, and Hux Photograph); \u201cSTAR WARS: THE RISE OF SKYWALKER Has A Very\n Interesting Alternate Title In Japan,\u201d ECF No. 102-1 Ex. 27 (using the Lightsaber Photograph); \u201cSTAR WARS:\n THE RISE OF SKYWALKER Star Daisy Ridley Promises A \u2018Brilliant End\u2019 to the Story,\u201d ECF No. 102-1 Ex. 28\n (using the Lightsaber Photograph); \u201cSTAR WARS: THE RISE OF SKYWALKER\u2019s Runtime Possible Revealed\n Along With Some Potential SPOILERS,\u201d ECF No. 102-1 Ex. 29 (using the R2-D2 Photograph); \u201cSTAR WARS:\n THE RISE OF SKYWALKER \u2013 Rey And Kylo Ren Clash On New Empire Magazine Covers,\u201d ECF No. 102-1 Ex.\n 30 (using the Lightsaber Photograph); \u201cSTAR WARS: THE RISE OF SKYWALKER Final Trailer Reportedly\n Scheduled for October 21,\u201d ECF No. 102-1 Ex. 31 (using the Lightsaber Photograph); \u201cSTAR WARS: THE RISE\n OF SKYWALKER\u2019s Oscar Isaac Blames \u2018Disney Overlords\u2019 For No Poe/Finn Romance,\u201d ECF No. 102-1 Ex. 32\n (using a cropped version of the Dameron Photograph); \u201cSTAR WARS: THE RISE OF SKYWALKER Remains #1\n At the Box Office As It Passes $900M Worldwide,\u201d ECF No. 102-1 Ex. 33 (using the Lightsaber Photograph);\n \u201cLuke Skywalker\u2019s Big STAR WARS: THE RISE OF SKYWALKER Scene Was The Result of Reshoots,\u201d ECF\n No. 102-1 Ex. 34 (using the R2-D2 Photograph); \u201cSTAR WARS: THE RISE OF SKYWALKER Passes $500\n Million At the Domestic Box Office,\u201d ECF No. 102-1 Ex. 35 (using the Lightsaber Photograph); see also CBM\n Article Data, ECF No. 104-3.\n 28\n See sources cited supra note 26.\n 29\n See Def. Mark Cassidy\u2019s Responses to Pl.\u2019s First Set of Requests for Admission (\u201cCassidy\u2019s Admissions\u201d),\n Responses 3, 9 15, 21, 27, 33, 39, 45, 51, ECF No. 102-1 Ex. 40; Def. Joshua Wilding\u2019s Responses to Pl.\u2019s First Set\n of Requests for Admission (\u201cWilding\u2019s Admissions\u201d), Responses 3, 4, 10, 12, 13, 14, 15, 16, 17, 29, 30, 36, 37, 43,\n 44, 50, 51 ECF No. 102-1 Ex. 41.\n\n 4\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2653 Page 5 of 41\n\n\n\n\n information or gossip about a given upcoming Star Wars film or the cast\u2019s reaction to certain\n\n events. For instance, one article is titled \u201cSTAR WARS: THE RISE OF SKYWALKER Star\n\n Daisy Ridley Promises a \u2018Brilliant End\u2019 to the Story\u201d and discusses Ms. Ridley\u2019s appearance on\n\n a talk show, 30 while another is titled \u201cSTAR WARS: THE LAST JEDI\u2019s Mark Hamill Shares A\n\n Lovely Tribute to Carrie Fisher One Year After Her Passing\u201d and discusses a post on social\n\n media made by Mr. Hamill. 31\n\n Trunk Archive filed this suit in September 2021, alleging copyright infringement against\n\n CBM, Mr. Best, Mr. Cassidy, and Mr. Wilding. 32 In June 2022, CBM and Mr. Best filed a\n\n counterclaim, seeking a declaratory judgment of non-infringement. 33 Notably, there is another\n\n case between Trunk Archive and CBM pending in this district, which also involves allegations of\n\n copyright infringement. 34 Up to this point, there has been substantial motion practice; the court\n\n has denied Defendants\u2019 motion to dismiss, 35 granted in part and denied in part Trunk Archive\u2019s\n\n motion to dismiss the counterclaim and to strike certain affirmative defenses, 36 and granted in\n\n part and denied in part Trunk Archive\u2019s motion for judgment on the pleadings. 37 Now, Trunk\n\n Archive moves for summary judgment on the issue of liability as well as Defendants\u2019\n\n counterclaim and affirmative defenses. 38 This motion was fully briefed on December 31, 2023. 39\n\n\n 30\n ECF No. 102-1 Ex. 28.\n 31\n ECF No. 102-1 Ex. 23.\n 32\n See Compl.\n 33\n See CBM\u2019s and Best\u2019s Answer & Counterclaim.\n 34\n See Best Little Sites v. Great Bowery, No. 2:19-cv-00319 (D. Utah).\n 35\n Mem. Dec. and Order Denying [16] Defs.\u2019 Mot. to Dismiss Compl. or Suspend Case, ECF No. 48.\n 36\n Order Granting in Part and Denying in Part [52] Mot. to Dismiss the Counterclaim and to Strike Certain\n Affirmative Defenses and [58] Motion to Strike Certain Affirmative Defenses, ECF No. 70.\n 37\n Mem. Dec. and Order Denying in Part and Granting in Part Plaintiff\u2019s Mot. for Partial J. on the Pleadings and\n Denying Defendants\u2019 Mot. for J. on the Pleadings (\u201cCourt\u2019s Order on Judgment on the Pleadings\u201d), ECF No. 85.\n 38\n See Pl.\u2019s Mot.\n 39\n Defs.\u2019 Opp\u2019n to Mot. for Summ. J. and Supporting Memorandum (\u201cDefs.\u2019 Opp\u2019n\u201d), ECF No. 109; Reply in\n Support for Mot. for Summ. J. (\u201cPl.\u2019s Reply\u201d), ECF No. 110.\n\n 5\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2654 Page 6 of 41\n\n\n\n\n Given new arguments raised on reply, the court granted Defendants the opportunity to file a sur-\n\n reply addressing those arguments, 40 which Defendants filed on July 1, 2024. 41\n\n STANDARD\n\n Summary judgment is appropriate if \u201cthere is no genuine dispute as to any material fact\n\n and the movant is entitled to judgment as a matter of law.\u201d 42 \u201cA fact is material if, under the\n\n governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material\n\n fact is genuine if a rational jury could find in favor of the nonmoving party on the evidence\n\n presented.\u201d 43 When the moving party bears the ultimate burden of proof at trial, the party must\n\n make an initial showing sufficient to show that \u201cno reasonable trier of fact could find other than\n\n for the moving party.\u201d 44 However, when the moving party does not bear the ultimate burden of\n\n proof at trial, the moving party satisfies its initial burden by pointing out the lack of evidence to\n\n support the nonmoving party\u2019s case. 45 If the moving party carries its initial burden, the burden\n\n then shifts to the nonmoving party to demonstrate that there is a genuine dispute of material fact\n\n for trial. 46\n\n\n\n\n 40\n See ECF No. 114.\n 41\n Resp. to Pl.\u2019s Reply in Support of Mot. for Summ. J. (\u201cDefs.\u2019 Sur-Reply\u201d), ECF No. 117.\n 42\n Fed. R. Civ. P. 56(a).\n 43\n Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th Cir. 2020) (quoting Jones v. Norton, 809 F.3d 564, 573 (10th\n Cir. 2015)).\n 44\n Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015) (quoting Calderone v. United States, 799 F.2d 254, 259\n (6th Cir. 1986)).\n 45\n Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).\n 46\n See id. at 324.\n\n 6\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2655 Page 7 of 41\n\n\n\n\n DISCUSSION\n\n I. Failure to Cite Facts in Statement of Undisputed Material Facts\n\n At several points throughout their opposition, Defendants argue that the court should\n\n deny Trunk Archive\u2019s motion solely on the basis that Trunk Archive failed to include facts in its\n\n statement of undisputed material facts, in accordance with local rules. 47 It is true that the court\u2019s\n\n local rules require that a motion for summary judgment be accompanied by a statement of\n\n undisputed material facts, and the rule implies that all facts necessary to decide the motion\n\n should be included in that statement. 48 And indeed, Trunk Archive\u2019s motion includes a section\n\n titled \u201cStatement of Undisputed Material Facts.\u201d 49 Defendants, however, point to no authority\n\n that suggests that the court should deny a motion for summary judgment solely for failure to\n\n include all facts necessary for resolution of the motion within the statement of undisputed\n\n material facts. Local rules provide that \u201cthe court may impose sanctions against an attorney, a\n\n party, or both for violating these rules,\u201d which may include any sanction the court deems\n\n appropriate. 50\n\n Even if it is true that Trunk Archive failed to comply with local rules, the Defendants\n\n have not offered the court any persuasive reason why denial of the entire motion would be an\n\n appropriate sanction. Defendants have filed a responsive brief making arguments on the law and\n\n facts; they have not been apparently prejudiced in any way by Trunk Archive\u2019s putative non-\n\n\n\n\n 47\n Defs.\u2019 Opp\u2019n 2, 11, 13, 18\u201320, 22\u201323, 27.\n 48\n See DUCivR 56-1(b)(3).\n 49\n See Pl.\u2019s Mot. 1\u20137. Notably, Trunk Archive included this section only after its original motion for summary\n judgment was stricken. See ECF No. 101.\n 50\n DUCivR 1-2.\n\n 7\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2656 Page 8 of 41\n\n\n\n\n compliance with the local rules. The court declines to deny or strike Trunk Archive\u2019s motion on\n\n this basis.\n\n II. Copyright Infringement\n\n \u201cTo establish [copyright] infringement, two elements must be proven: [A] ownership of a\n\n valid copyright, and [B] copying of the constituent elements of the work that are original.\u201d 51\n\n A. Ownership of a Valid Copyright\n\n 1. Valid Copyright\n\n A valid copyright requires an \u201coriginal work[] of authorship fixed in any tangible\n\n medium of expression,\u201d including \u201cpictorial\u201d works. 52 Originality requires \u201conly that the work\n\n was independently created by the author . . . and that it possesses at least some minimal degree of\n\n creativity.\u201d 53 Photographs are copyrightable \u201conly for the \u2018incremental contribution\u2019 represented\n\n by their interpretation or expression of the objects of their attention.\u201d 54 Photographs of\n\n unadorned facts, however, are not eligible for copyright protection. 55 A certificate of registration\n\n \u201cmade before or within five years after first publication of the work shall constitute prima facie\n\n evidence of the validity of the copyright and of the facts stated in the certificate.\u201d 56\n\n\n\n\n 51\n Feist Publ\u2019ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991); accord Craft Smith, LLC v. EC Design,\n LLC, 969 F.3d 1092, 1099 (10th Cir. 2020).\n 52\n 17 U.S.C. \u00a7 102(a).\n 53\n Feist Pubs., 499 U.S. at 345.\n 54\n Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1264 (10th Cir. 2008) (quoting SHL Imaging,\n Inc. v. Artisan House, Inc., 117 F.Supp.2d 301, 311 (S.D.N.Y. 2000)) (citations omitted); see also Burrow-Giles\n Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (upholding the constitutionality of copyrighting photographs \u201cso\n long as they are representations of original intellectual conceptions of the author\u201d); 2 William F. Patry, Patry on\n Copyright \u00a7 3:118 (March 2024 Update); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright\n \u00a7 2A.08[E] (Rev. Ed. April 2024 Update).\n 55\n Meshwerks, 528 F.3d at 1266.\n 56\n 17 U.S.C. \u00a7 410.\n\n 8\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2657 Page 9 of 41\n\n\n\n\n For starters, the photographs at issue were registered with the Copyright Office within\n\n five years of publication with Vanity Fair and as such are prima facie valid. 57 Regardless, the\n\n court finds that each of the Star Wars Photographs possess the required minimal degree of\n\n creativity. Many of the photographs are portraits, in which creative choices by Ms. Leibovitz are\n\n evident. 58 Likewise, several photographs apparently depict action sequences taken during\n\n filming. 59 These photographs still possess minimal creativity, however, as they express the\n\n filmed sequence in a particular way, independent of the film itself. 60 Finally, a series of\n\n photographs depict the production of the films. 61 Though a closer question, these photographs\n\n still contain sufficient expression to be copyrightable. The photographs depict the cast and crew\n\n during the process of filming, but also reflect Ms. Leibovitz\u2019s choices concerning when to take a\n\n given shot and the subjects of the shot, as well as the technical aspects of the photograph\n\n (lighting, angle, framing, etc.). 62 Indeed, Defendants apparently concede the issue of validity in\n\n their brief. 63\n\n Accordingly, the court finds that no reasonable jury could conclude other than that the\n\n copyright for each of the Star Wars Photographs is valid. There are two certificates of\n\n registration covering each of the images, and each photograph possesses at least a minimal\n\n degree of creativity warranting copyright protection.\n\n\n\n\n 57\n See Certificate of Registration No. VA 2-111-252; Certificate of Registration No. VA 2-192-380.\n 58\n See Holdo Photograph; DJ Photograph; Skywalker Photograph; Connix Photograph; Millennium Falcon\n Photograph; Hux Photograph; Dameron Photograph.\n 59\n See R2-D2 Photograph; Finn Photograph; Lightsaber Photograph.\n 60\n See Meshwerks, 528 F.3d at 1264.\n 61\n See Production Photographs.\n 62\n See id.\n 63\n See Defs.\u2019 Opp\u2019n 36.\n\n 9\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2658 Page 10 of 41\n\n\n\n\n 2. Ownership\n\n Under 17 U.S.C. \u00a7 101, \u201ccopyright owner\u201d is defined as the owner of \u201cany one of the\n\n exclusive rights comprised in a copyright.\u201d 64 Ownership is initially vested in the author of the\n\n copyrighted work. 65 However, the statute contemplates that the ownership of a copyright may be\n\n transferred. 66 A \u201ctransfer of copyright ownership\u201d includes an \u201cexclusive license [] or any other\n\n conveyance . . . .\u201d 67 It \u201cis not valid unless an instrument of conveyance . . . is in writing and\n\n signed by the owner of the rights conveyed or such owner\u2019s duly authorized agent.\u201d 68\n\n Here, Ms. Leibovitz held a registered copyright in the photographs at issue. 69 She granted\n\n Trunk Archive \u201cthe exclusive worldwide right to license, market, and promote\u201d certain images\n\n via a written agreement signed by her manager. 70 The Agreement covers \u201cthose images provided\n\n to Trunk Archive\u201d by Ms. Leibovitz. 71 Ms. Leibovitz declares that she provided Trunk Archive\n\n with the photographs at issue in this case following their publication with Vanity Fair. 72\n\n Defendants do not argue that Trunk Archive does not own the photographs, nor do they\n\n otherwise challenge the underlying facts regarding registration or licensing. Accordingly, the\n\n\n 64\n 17 U.S.C. \u00a7 101.\n 65\n Id. \u00a7 201(a).\n 66\n Id. \u00a7 201(d)(1) (\u201cThe ownership of a copyright may be transferred in whole or in part by any means of\n conveyance or by operation of law[.]\u201d).\n 67\n Id. \u00a7 101.\n 68\n Id. \u00a7 204(a).\n 69\n See Certificate of Registration No. VA 2-111-252; Certificate of Registration No. VA 2-192-380.\n 70\n See Artist Agreement \u00b6 1; see also Leibovitz Decl. \u00b6\u00b6 21\u201331.\n 71\n Artist Agreement \u00b6 2.\n 72\n Leibovitz Decl. \u00b6\u00b6 27, 31. Defendants apparently object to Trunk Archive\u2019s proffered fact that Ms. Leibovitz\n \u201cprovided\u201d it the photographs after they were published in Vanity Fair. See Resp. to Pl.\u2019s Statement of Undisputed\n Material Facts \u00b6\u00b6 22, 25, ECF No. 109-3 Ex. R. The stated basis of this objection is hearsay, given that there is no\n \u201ccontemporaneous corroborating document produced by Plaintiff of the transfer of the photographs to Plaintiff.\u201d Id.\n Ms. Leibovitz\u2019s declaration is sufficient for purposes of summary judgment. See Fed. R. Civ. P. 56(c) (establishing\n that affidavits or declarations are proper evidence to consider on a motion for summary judgment and establishing\n that an objection to evidence must show that \u201ca fact cannot be presented in a form that would be admissible in\n evidence\u201d (emphasis added)). At a trial, Ms. Leibovitz could testify as to the transfer; the transfer itself does not\n implicate the rule against hearsay.\n\n 10\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2659 Page 11 of 41\n\n\n\n\n court concludes Trunk Archive has carried its burden in showing that there is no genuine dispute\n\n of material fact on this element.\n\n B. Copying of Original Elements\n\n The second element generally requires two inquiries: first, whether, as a factual matter\n\n the defendant copied the plaintiff\u2019s work; and second, whether, as a mixed question of law and\n\n fact, whether the elements copied by the defendant are protected by copyright. 73 In this case,\n\n only the fact of copying is at issue. 74\n\n \u201cCopying\u201d occurs when the defendant infringes any of the copyright owner\u2019s exclusive\n\n rights established by the Copyright Act. 75 These exclusive rights contain, among other things, the\n\n right to display a work publicly and the right to create derivative works. 76 Trunk Archive asserts\n\n that Mr. Cassidy and Mr. Wilding are liable as direct infringers for violating these two rights,\n\n while CBM and Mr. Best are liable as vicarious infringers. 77 Defendants contest both\n\n arguments. 78\n\n\n\n\n 73\n Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1204 (10th Cir. 2014) (quoting Mitel, Inc. v. Iqtel, Inc., 124\n F.3d 1366, 1370 (10th Cir. 1997)).\n 74\n \u201cIn essence, [the] second consideration asks whether defendant took \u2018too much\u2019 of plaintiff\u2019s work; it asks what\n level of \u2018sameness\u2019 is between the two works.\u201d Id. It is undisputed that the articles on CBM\u2019s website embedded\n links to full-sized images of the Star Wars Photographs, without significant alteration. See supra notes 27, 29 and\n accompanying text. Accordingly, if there is no genuine dispute of material fact regarding the fact of copying, then\n the extent of copying would be no barrier to liability. Indeed, neither party briefs this issue.\n 75\n See Paramount Pictures Corp. v. Video Broad. Sys., Inc., 724 F.Supp. 808, 819 (D. Kan. 1989) (citing S.O.S., Inc.\n v. Payday, Inc., 886 F.2d 1081, 1085 n.3 (9th Cir. 1989)); see also Twentieth Century Music Corp. v. Aiken, 422\n U.S. 151, 154\u201355 (1975) (\u201cThe Copyright Act does not give a copyright holder control over all uses of his\n copyrighted work. Instead, . . . the Act enumerates several \u2018rights\u2019 that are made \u2018exclusive\u2019 to the holder of the\n copyright. If a person, without authorization from the copyright holder, puts a copyrighted work to use within the\n scope of one of those \u2018exclusive rights,\u2019 he infringes the copyright.\u201d (quoting Fortnightly Corp. v. United Artists\n Television, Inc., 392 U.S. 390, 393\u201395 (1968)).\n 76\n 17 U.S.C. \u00a7 106.\n 77\n Pl.\u2019s Mot. 11\u201317.\n 78\n Defs.\u2019 Resp. 10\u201317.\n\n 11\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2660 Page 12 of 41\n\n\n\n\n 1. Direct Infringement \u2013 Display Right\n\n 17 U.S.C. \u00a7 106 provides that the \u201cthe owner of copyright under this title has the\n\n exclusive rights to do and to authorize any of the following: . . . in the case of . . . pictorial,\n\n graphic, or sculptural works, . . . to [1] display the copyrighted work [2] publicly.\u201d 79 In addition,\n\n any act of infringement must be volitional.80\n\n i. Display\n\n The Act defines \u201cdisplay\u201d as \u201cto show a copy of [the work], either directly or by means\n\n of a film, slide, television image, or any other device or process[.]\u201d 81 \u201cCopies\u201d are defined as\n\n \u201cmaterial objects . . . in which a work is fixed by any method now known or later developed, and\n\n from which the work can be perceived, reproduced, or otherwise communicated, either directly\n\n or with the aid of a machine or device.\u201d 82 In addition, the definition of \u201ccopies\u201d includes the\n\n original: \u201cThe term \u2018copies\u2019 includes the material object . . . in which the work is first fixed.\u201d 83\n\n Finally, \u201c[a] work is \u2018fixed\u2019 in a tangible medium of expression when its embodiment in a copy\n\n . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise\n\n communicated for a period of more than transitory duration.\u201d 84\n\n\n\n\n 79\n 17 U.S.C. \u00a7 106(5). Pictorial works include photographs. See id. \u00a7 101.\n 80\n Millennium Funding, Inc. v. Private Internet Access, Inc., No. 21-cv-01261, 2022 WL 7560395, at *11\u201312 (D.\n Colo. Oct. 13, 2022) (\u201cThe Court is persuaded by this weight of authority and predicts that the Tenth Circuit would\n follow the other Circuit courts holding that causation is a requisite element of a copyright infringement claim,\n [which in turn requires volitional conduct].\u201d) (citing Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d\n 121, 131 (2d Cir. 2008); CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 550\u201351 (4th Cir. 2004); BWP Media\n USA, Inc. v. T&S Software Assocs., Inc., 852 F.3d 436, 443\u201344 (5th Cir. 2017); Perfect 10 v. Giganews, Inc., 847\n F.3d 657, 666 (9th Cir. 2017)).\n 81\n Id. \u00a7 101.\n 82\n Id.\n 83\n Id.\n 84\n Id.\n\n 12\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2661 Page 13 of 41\n\n\n\n\n Defendants argue that summary judgment is inappropriate on Trunk Archive\u2019s direct\n\n infringement claim because they have not displayed the Star Wars Photographs, but rather have\n\n embedded a link to those photographs in the articles published on CBM\u2019s website. 85 Trunk\n\n Archive argues that embedding a link to a photograph constitutes a display of that photograph. 86\n\n Earlier, the court denied Trunk Archive\u2019s motion for partial judgment on the pleadings as\n\n to Defendant\u2019s \u201cembedding defense.\u201d 87 The earlier ruling found that \u201cTrunk Archive has not\n\n persuaded the court to ignore the \u2018server\u2019 test.\u201d 88 On summary judgment, Trunk Archive urges\n\n the court to reconsider. Defendants were afforded, and provided, an additional brief to respond\n\n on this issue.\n\n \u201cGenerally, the \u2018law of the case\u2019 doctrine dictates that prior judicial decisions on rules of\n\n law govern the same issues in subsequent phases of the same case.\u201d 89 However, Federal Rule of\n\n Civil Procedure 54(b) \u201cexpressly allows for revision of an interlocutory order before entry of\n\n final judgment.\u201d 90 Thus, the \u201claw of the case doctrine [i]s inapplicable to reconsideration of\n\n interlocutory orders in the district court without regard to the basis for reconsideration.\u201d 91 The\n\n Rule provides:\n\n [A]ny order or other decision, however designated, that adjudicates fewer than all\n the claims or the rights and liabilities of fewer than all the parties does not end the\n action as to any of the claims or parties and may be revised at any time before the\n\n\n 85\n Defs.\u2019 Opp\u2019n 10\u201312.\n 86\n Pl.\u2019s Mot. 13, 17\u201322.\n 87\n Court\u2019s Order on Judgment on the Pleadings. The issue was pled and briefed as an affirmative defense. The court\n notes that the issue is not properly an affirmative defense, but rather an element of a copyright claim.\n 88\n Id. at 14.\n 89\n Been v. O.K. Indus., Inc., 495 F.3d 1217, 1224 (10th Cir. 2007) (citing Homans v. City of Albuquerque, 366 F.3d\n 900, 904 (10th Cir. 2004)).\n 90\n Luo v. Wang, 71 F.4th 1289, 1297 (10th Cir. 2023) (quoting Elephant Butte Irr. Dist. of N.M. v. U.S. Dep\u2019t of\n Interior, 538 F.3d 1299, 1306 (10th Cir. 2008)).\n 91\n Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1252 (10th Cir. 2011) (citing Wilson v. Merrell Dow Pharms., Inc., 160\n F.3d 625, 628 (10th Cir. 1998)).\n\n 13\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2662 Page 14 of 41\n\n\n\n\n entry of a judgment adjudicating all the claims and all the parties\u2019 rights and\n liabilities.92\n\n And when invited to reconsider a prior ruling, \u201c\u2018the district court is not bound by the strict\n\n standards for altering or amending a judgment encompassed in Federal Rules of Civil Procedure\n\n 59(e) and 60(b),\u2019 which govern a district court\u2019s reconsideration of its final judgments.\u201d 93 While\n\n reconsideration under Rules 59(e) and 60(b) requires at least \u201c(1) an intervening change in the\n\n controlling law, (2) new evidence previously unavailable, [or] (3) the need to correct clear error\n\n or prevent manifest injustice,\u201d 94 reconsideration under Rule 54(b) does not. 95 Accordingly, the\n\n court reviews the issue of embedding.\n\n The Ninth Circuit adopted the \u201cserver\u201d test in Perfect 10, Inc. v. Amazon.com, Inc. 96\n\n There, Google operated a search engine that provided thumbnail images that were stored on\n\n Google\u2019s servers in response to an image search. 97 In addition, when a user clicked on the\n\n thumbnail image, the user\u2019s browser interpreted HTML instructions from Google to show a full-\n\n sized image from the third-party website. 98 However, the full-sized image was not stored on\n\n Google\u2019s servers, and instead, Google \u201csimply provide[d] HTML instructions directing a user\u2019s\n\n browser to access a third-party website.\u201d 99 The Ninth Circuit held that Perfect 10 had not stated a\n\n prima facie case of copyright infringement for violation of its display right for the display of the\n\n full-sized image. 100 It reasoned that, under the definitions of \u201cdisplay\u201d and \u201ccopies,\u201d a defendant\n\n\n\n 92\n Fed. R. Civ. P. 54(b).\n 93\n Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1024 (10th Cir. 2018).\n 94\n Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).\n 95\n Luo, 71 F.4th at 1298\u201399.\n 96\n 508 F.3d 1146, 1159\u201360 (9th Cir. 2007).\n 97\n Id. at 1155.\n 98\n Id.\n 99\n Id. at 1156.\n 100\n Id. at 1159\u201362.\n\n 14\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2663 Page 15 of 41\n\n\n\n\n committed infringement only when the defendant owned the server on which the copy was\n\n stored. 101 \u201cBecause Google\u2019s computers [did] not store the [full-sized] photographic images,\n\n Google does not have a copy of the images for purposes of the Copyright Act.\u201d 102 Put another\n\n way, \u201cGoogle does not have any \u2018material objects . . . in which a work is fixed . . . and from\n\n which the work can be perceived, reproduced, or otherwise communicated\u2019 and thus cannot\n\n communicate a copy.\u201d 103\n\n The Ninth Circuit has applied the server test several times since Perfect 10. 104 Of\n\n particular note is Hunley v. Instagram, LLC. 105 In Hunley, the plaintiffs posted some of their\n\n copyrighted photography on Instagram, and defendants Time and BuzzFeed published articles\n\n that embedded plaintiffs\u2019 photographs. 106 There, the Ninth Circuit rejected the argument that the\n\n server test applied only to search engines. 107 It then rejected the plaintiffs\u2019 arguments urging\n\n reconsideration of the server test, given that it was bound by Perfect 10. 108 Finally, it rejected the\n\n contention that the server test had been impliedly overruled by the Supreme Court in American\n\n Broadcasting Co. v. Aereo, 109 given that Aereo dealt with the right to perform rather than the\n\n right to display. 110 Accordingly, the Ninth Circuit held that Time and BuzzFeed did not display a\n\n\n 101\n Id. at 1160 (reciting the definitions of \u201cdisplay,\u201d \u201ccopies,\u201d and \u201cfixed\u201d; noting precedent that an image stored on\n a computer is a \u201ccopy\u201d; then concluding that \u201c[t]he computer owner shows a copy . . . when the owner uses the\n computer to fill the computer screen with the photographic image stored on that computer, or by communicating the\n stored image electronically to another person\u2019s computer.\u201d).\n 102\n Id.\n 103\n Id. 1160\u201361.\n 104\n E.g., Bell v. Wilmott Storage Servs., LLC, 12 F.4th 1065, 1072\u201374 (9th Cir. 2021); Evox Prods., LLC v. Verizon\n Media, Inc., No. 21-56046, 2022 WL 17430309, at *1 (9th Cir. Dec. 6, 2022).\n 105\n 73 F.4th 1060 (9th Cir. 2023).\n 106\n Id. at 1065\u201367.\n 107\n Id. at 1070.\n 108\n Id. at 1071\u201372, 1076.\n 109\n 573 U.S. 431 (2014).\n 110\n Hunley, 73 F.4th at 1072\u201376. The Ninth Circuit reasoned that Copyright Act defines \u201cdisplay\u201d with reference to a\n \u201ccopy\u201d of the work, while the definition of \u201cperform\u201d does not have such a limitation. See id. at 1074 (\u201c[I]n Aereo\n\n 15\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2664 Page 16 of 41\n\n\n\n\n copy of the plaintiffs\u2019 photographs, given that neither defendant stored plaintiffs\u2019 photographs. 111\n\n The Ninth Circuit denied rehearing en banc in Hunley. 112\n\n The Tenth Circuit has not spoken one way or the other on the server test. 113 Other circuits\n\n have largely been silent as well. The First Circuit has avoided the issue. 114 And the Seventh\n\n Circuit cited Perfect 10 with approval in an opinion focused on allegations of contributory\n\n infringement of the right to perform\u2014not the right to display\u2014a copyrighted work. 115 Beyond\n\n that, the few district courts not bound by Perfect 10 to have considered the issue are split. A\n\n handful have rejected the server test outright or distinguished Perfect 10 on the facts. 116 Others\n\n have considered the server test to be persuasive for the purposes of other rights codified in the\n\n\n\n\n the Court did not address what it means to transmit a copy, because the public performance right has no such\n requirement.\u201d).\n 111\n Id. at 1077.\n 112\n Order Denying Rehearing En Banc, Hunley v. Instagram, LLC, No. 22-15293 (9th Cir. May 1, 2024).\n 113\n Cf. Greer v. Moon, 83 F.4th 1283, 1294 n.12 (10th Cir. 2023) (citing Perfect 10 but not discussing the server\n test).\n 114\n See Soc\u2019y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 54 (1st Cir. 2012) (\u201cAlthough the\n question of whether a computer has \u2018displayed\u2019 a copyrighted work may be a difficult one in other contexts, it is\n beyond question here that the Archbishop has \u2018displayed\u2019 the Works on his website. We need not delineate the outer\n bounds of the scope of the term \u2018display\u2019 where, as here, the fact that the Works were \u2018displayed\u2019 on the\n Archbishop\u2019s website is undisputed.\u201d (citing Perfect 10, 508 F.3d at 1160\u201362) (citations omitted)).\n 115\n Flava Works, Inc. v. Gunter, 689 F.3d 754, 760\u201361 (7th Cir. 2012).\n 116\n See McGucken v. Newsweek LLC, No. 19 Civ. 9617, 2022 WL 836786, at *5\u20136 (S.D.N.Y. 2022) (rejecting the\n server test for purposes of the right to display); Nicklen v. Sinclair Broadcast Grp., Inc., 551 F.Supp.3d 188, 194\u201395\n (S.D.N.Y. 2021) (rejecting the server test for purposes of the right to display); Goldman v. Breitbart News Network,\n LLC, 302 F.Supp.3d 585, 595\u201396 (S.D.N.Y. 2018) (noting that \u201cthis Court is skeptical that Perfect 10 correctly\n interprets the display right of the Copyright Act\u201d and distinguishing Perfect 10 on the facts); Leader\u2019s Inst., LLC v.\n Jackson, No. 3:14-cv-3572, 2017 WL 5629514, at *11 (N.D. Tex. Nov. 22, 2017) (distinguishing Perfect 10 on the\n facts, and noting that \u201cto the extent Perfect 10 makes actual possession of a copy a necessary condition to violating a\n copyright owner\u2019s exclusive right to display her copyrighted works, the Court respectfully disagrees with the Ninth\n Circuit\u201d).\n\n 16\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2665 Page 17 of 41\n\n\n\n\n Copyright Act\u2014for instance, the reproduction right 117\u2014though none outside the Ninth Circuit\n\n have apparently adopted the server test for purposes of the display right. 118\n\n The court now finds the \u201cserver\u201d test to be unpersuasive. The Perfect 10 court reasoned\n\n that Google did not \u201cdisplay\u201d the copyrighted works at issue through embedded links because it\n\n did not possess a copy of the works on its servers. 119 But possession of a physical copy is not a\n\n prerequisite to displaying a copyrighted work. Instead, the plain text of the Act makes clear that\n\n \u201c[t]o \u2018display\u2019 a work means to show a copy of it, either directly or by . . . any other device or\n\n process[.]\u201d 120 And while it is true that the copy being shown must be a material object in which\n\n the copyrighted work is fixed, 121 nothing in the text of the statute requires that the alleged\n\n infringer itself possess the material object. The word \u201cshow\u201d is itself undefined, but nothing in\n\n its ordinary meaning necessitates physical possession or control. 122 The Ninth Circuit found that\n\n a computer owner only shows a copy of the copyrighted work \u201cwhen the owner uses the\n\n computer to fill the computer screen with the photographic image stored on the computer, or by\n\n\n\n\n 117\n Microsoft Corp. v. Softicle.com, No. 16-2762, 2017 WL 5517379, at *2\u20133 (D.N.J. Sept. 29, 2017) (holding, for\n purpose of the reproduction and distribution rights, that alleging providing a link to a website from which copies of\n software could be made did not state a claim for copyright infringement); Grady v. Iacullo, No. 13-cv-00624, 2016\n WL 1559134, at *5\u20137 (D. Colo. Apr. 18, 2016) (holding that for purposes of the rights to reproduce, prepare\n derivative works, and distribute copies the \u201cplaintiff was required to present some evidence that its photographs and\n videos were placed on [the] defendant\u2019s computer and remained placed there for a period of more than transitory\n duration.\u201d); MidlevelU, Inc. v. ACI Info. Grp., No. 18-80843, 2019 WL 7371835, at *4 (S.D. Fla. Sept. 10, 2019)\n (holding a factual dispute existed regarding whether the defendant hosted the allegedly infringing content on its\n website, thereby preventing summary judgment for the defendant, in a case apparently focused on the right to\n reproduce copies).\n 118\n Cf. Bell v. Merchants Bank of Indiana, 456 F.Supp.3d 1046, 1049\u201350 (S.D. Ind. 2020) (noting Perfect 10 and\n holding that the defendant committed infringement at least because the copyrighted material was stored on its\n servers).\n 119\n Perfect 10, 508 F.3d at 1160.\n 120\n 17 U.S.C. \u00a7 101 (emphases added).\n 121\n See id.\n 122\n See Show, Merriam-Webster, https://www.merriam-webster.com/dictionary/show#word-history\n [https://perma.cc/79LB-AJTR] (last visited July 15, 2024) (\u201c1. to cause or permit to be seen.\u201d).\n\n 17\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2666 Page 18 of 41\n\n\n\n\n communicating the stored image electronically to another person\u2019s computer.\u201d 123 But this court\n\n finds no basis in the text for the stored image requirement. Indeed, the definitions of \u201cdisplay\u201d\n\n and \u201cpublicly\u201d confirm a broad reading of the statute, as both emphasize that any means\u2014\n\n including both direct and indirect means\u2014by which a copy is shown are covered by the\n\n exclusive rights of Section 106(5). 124 The Act specifically states display includes using \u201cany\n\n device or process\u201d to show a work. 125 In sum, neither Section 106(5), nor the Copyright Act\u2019s\n\n definitions, create a requirement that in order to \u201cdisplay\u201d a copyrighted work the alleged\n\n infringer must possess a physical copy of that work.\n\n An example helps illustrate the text of the statute. Imagine that a famous painter has\n\n licensed a gallery that is open to the public to display her work. The painter has not permitted\n\n anyone to photograph or otherwise duplicate the work. An attendee attends the gallery wearing a\n\n hidden camera that is broadcasting live to a television being viewed by numerous members of\n\n the public. The attendee points the camera at the painting, and an image of the painting is\n\n broadcast to the television screen. The attendee is not recording the broadcast, and as such, the\n\n only physical embodiment of the painting remains the original. In such a scenario, the attendee\n\n has displayed the painting. First, the painting is the relevant copy under the Copyright Act. The\n\n painting is a material object that is \u201cfixed\u201d in a tangible medium, and the Copyright Act\n\n expressly provides that originals are \u201ccopies.\u201d 126 Second, by broadcasting an image of the\n\n\n\n 123\n Perfect 10, 508 F.3d at 1160.\n 124\n See 17 U.S.C. \u00a7 101 (\u201cTo \u2018display\u2019 a work means to show a copy of it, either directly or by means of a film, slide,\n television image, or any other device or process[.] . . . To perform or display a work \u2018publicly\u2019 means-- . . . (2) to\n transmit or otherwise communicate a . . . display of the work . . . to the public, by means of any device or process[.]\u201d\n (emphases added)).\n 125\n Id. (emphasis added).\n 126\n See id.\n\n 18\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2667 Page 19 of 41\n\n\n\n\n painting, the attendee has shown the painting by causing or permitting it to be seen by others. 127\n\n And finally, the attendee has shown the painting by means of \u201ctelevision image[] or any other\n\n device or process[.]\u201d 128 That the attendee is not recording the broadcast, and does not herself\n\n possess a copy of the painting is irrelevant to the inquiry compelled by the text.\n\n It its sur-reply, Defendants argue only that because the Ninth Circuit declined rehearing\n\n en banc, thereby confirming the validity of the server test in that circuit, and because policy\n\n rationales support the server test, the court should decline to reconsider it. 129 Defendants offer no\n\n textual analysis of their own. At best, Defendants point to the Ninth Circuit\u2019s statement that it\n\n was relying on the \u201cplain language\u201d of the Copyright Act. 130 But, as discussed above, the court\n\n now is no longer persuaded by the reading set forth in Perfect 10 and its progeny. Similarly,\n\n while the policies or purposes of a statute may illuminate the text, 131 they do not overcome it. 132\n\n Accordingly, the court concludes that a defendant who embeds a copyrighted image on a\n\n webpage, without hosting the image on its servers, may infringe the copyright holder\u2019s display\n\n rights. That conclusion is compelled by the text of the Copyright Act, and the court is no longer\n\n persuaded by the server test. Whether this conclusion makes for good policy is not for the court\n\n to decide; it is for Congress. Congress codified an exclusive right of copyright owners to display\n\n their work publicly, and the definitions it chose for that right cover means by which a defendant\n\n shows the work without exercising physical control over it. That other means may exist for\n\n\n 127\n Show, Merriam-Webster, https://www.merriam-webster.com/dictionary/show#word-history\n [https://perma.cc/79LB-AJTR] (last visited July 15, 2024).\n 128\n 17 U.S.C. \u00a7 101.\n 129\n Defs.\u2019 Sur-Reply 3\u20139.\n 130\n Id. at 6 (quoting Hunley, 73 F.4th at 1070).\n 131\n See, e.g., United States v. Tinklenberg, 563 U.S. 647, 655 (2011).\n 132\n Patel v. Garland, 596 U.S. 328, 346 (2022) (\u201c[P]olicy concerns cannot trump the best interpretation of the\n statutory text.\u201d).\n\n 19\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2668 Page 20 of 41\n\n\n\n\n copyright owners to control their works and that they may also have copyright infringement\n\n claims against those who also host a copyrighted work on their servers is immaterial to the issue\n\n at hand.\n\n Turning to the facts, there is no genuine dispute of fact that Mr. Cassidy and Mr. Wilding\n\n published articles on CBM\u2019s website that contained embedded links to the Star Wars\n\n Photographs that were hosted on a third-party\u2019s server, which caused those images to appear in a\n\n given article hosted on CBM\u2019s website. 133 Put another way, a reader who interacted with any of\n\n the articles at issue that Mr. Cassidy or Mr. Wilding authored would have seen one of the\n\n copyrighted Star Wars Photographs. 134 Under the plain meaning of the word \u201cshow,\u201d Mr.\n\n Cassidy and Mr. Wilding \u201cshowed\u201d the Star Wars Photographs by embedding them in such a\n\n way that a user would see the image while reading the article. 135 And while the record is silent as\n\n to where these images are stored, that fact is immaterial; in order to embed a photograph, one\n\n must necessarily link to a location in which it is stored.\n\n ii. Publicly\n\n To display a work \u201cpublicly\u201d includes \u201cto transmit or otherwise communicate a . . .\n\n display of the work . . . to the public, by means of any device or process, whether the members of\n\n\n\n 133\n See supra note 29 and accompanying text.\n 134\n See sources cited supra note 27.\n 135\n The Ninth Circuit held that providing HTML instructions that direct a user\u2019s browser to another website that\n stores the copyrighted image \u201cis not the equivalent of showing a copy\u201d because \u201cHTML instructions do not\n themselves cause infringing images to appear on the user\u2019s computer screen.\u201d Perfect 10, 508 F.3d at 1161. Instead,\n \u201c[t]he HTML merely gives the address of the image to the user\u2019s browser. The browser then interacts with the\n computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the\n user\u2019s computer screen.\u201d Id. The court is not persuaded by this reasoning. The process of embedding at issue here\n involves a short causal chain, where the only volitional conduct at issue is the Defendants\u2019 use of embedded links. In\n other words, there are no intervening causes between embedding a link and an image appearing in the article. Of\n course, this conclusion would be different if the Defendants had simply provided a URL link for a website that\n hosted the images, as the images would not appear within the articles at issue.\n\n 20\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2669 Page 21 of 41\n\n\n\n\n the public capable of receiving the performance or display receive it in the same place or in\n\n separate places and at the same time or at different times.\u201d 136\n\n There is no genuine dispute of fact that Mr. Cassidy and Mr. Wilding published their\n\n articles on a publicly accessible website. Accordingly, they transmitted or otherwise\n\n communicated their articles to the public, and it is immaterial whether the members of the public\n\n accessed those articles. Indeed, Defendants do not argue that their display was not public.\n\n iii. Volitional Conduct\n\n \u201cWhile the Copyright Act does not require that the infringer know that he is infringing\n\n . . . it nonetheless requires conduct by a person who causes in some meaningful way an\n\n infringement.\u201d 137 Here, Mr. Cassidy and Mr. Wilding authored articles that contained embedded\n\n links to the Star Wars Photographs and posted those articles on CBM\u2019s website. 138 As such, there\n\n is no genuine dispute of material fact that Mr. Cassidy\u2019s and Mr. Wilding\u2019s volitional conduct\n\n caused the infringement at issue here.\n\n In sum, there are no genuine disputes of material fact on any of the elements to Trunk\n\n Archive\u2019s direct infringement claim against Mr. Cassidy and Mr. Wilding. No reasonable jury\n\n could hold otherwise than for Trunk Archive on this claim. Accordingly, summary judgment in\n\n favor of Trunk Archive is appropriate. By embedding links to copyrighted photographs onto a\n\n publicly accessible webpage, Mr. Cassidy and Mr. Wilding infringed Trunk Archive\u2019s exclusive\n\n right to display the Star Wars Photographs under 17 U.S.C. \u00a7 106(5).\n\n\n\n\n 136\n 17 U.S.C. \u00a7 101.\n 137\n CoStar Grp., 373 F.3d at 549.\n 138\n See Cassidy\u2019s Admissions, Response Nos. 2, 3, 8, 9, 14, 15, 20, 21, 26, 27, 32, 33, 38, 39, 44, 45, 50, 51;\n Wildings Admissions, Response Nos. 2, 3, 9\u201317, 28, 29, 35, 36, 42, 43, 44, 49, 50, 51.\n\n 21\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2670 Page 22 of 41\n\n\n\n\n 2. Direct Infringement \u2013 Derivative Works\n\n 17 U.S.C. \u00a7 106 provides the owner of a copyrighted work the exclusive right \u201cto prepare\n\n derivative works based upon the copyrighted work.\u201d 139 Defendants argue that Trunk Archive did\n\n not allege a copyright infringement claim based upon preparing derivative works, and in the\n\n alternative, that embedding links to photographs into articles does not create a derivative\n\n work. 140 Trunk Archive argues that it did not specifically limit its claim to infringement on the\n\n display right, and that Rule 15 permits amendment of its claim. 141\n\n The court first considers whether Trunk Archive\u2019s Complaint alleged a copyright\n\n infringement claim based upon the creation of derivative works. In the Complaint, Trunk\n\n Archive alleges only that Defendants committed copyright infringement \u201cby causing [the Star\n\n Wars Photographs] to be displayed as part of [various articles] on [CBM\u2019s website] without\n\n authorization[.]\u201d 142 Trunk Archive does not allege in its Complaint that Defendants infringed its\n\n copyrights by creating derivative works. According to Trunk Archive, however, \u201cit never limited\n\n its complaint to a violation of any one specific right under [Section] 106 of the Copyright Act,\n\n but rather generally alleged that the Defendants\u2019 use of the Star Wars Photographs in the\n\n [articles] constituted infringement, generally.\u201d 143 And while generally speaking, \u201ca complaint\n\n need not set forth the plaintiff\u2019s legal theories,\u201d the Tenth Circuit has held that a plaintiff may not\n\n raise a new theory of the case late in the litigation, even when that theory is potentially supported\n\n by the factual allegations of the complaint. 144 Here, Trunk Archive did not raise its derivative\n\n\n 139\n 17 U.S.C. \u00a7 106(2).\n 140\n Def.\u2019s Opp\u2019n 17\u201321.\n 141\n Pl.\u2019s Reply 11.\n 142\n Compl. \u00b6 80.\n 143\n Pl.\u2019s Reply 11.\n 144\n Zokari v. Gates, 561 F.3d 1076, 1084, 1085\u201387 (10th Cir. 2009).\n\n 22\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2671 Page 23 of 41\n\n\n\n\n works theory until its motion for summary judgment, over three years after it filed its Complaint.\n\n Fairness prevents construing Trunk Archive\u2019s Complaint as proceeding under a second variety of\n\n copyright infringement that was not disclosed until Trunk Archive\u2019s motion for summary\n\n judgment. 145\n\n Trunk Archive asserts that Rule 15 permits a party to amend their pleadings even at\n\n summary judgment. 146 The court need not reach that issue here, however, as Trunk Archive has\n\n not moved to amend its Complaint to add a new legal theory. Trunk Archive simply \u201crequest[s]\n\n that it be allowed to pursue\u201d a derivative works theory. Under the court\u2019s local rules, a reply\n\n brief may not include a motion. 147\n\n Therefore, because Trunk Archive has not stated a claim for copyright infringement\n\n based upon Defendants\u2019 creation of derivative works, the court need not reach whether\n\n embedding a copyrighted photograph into an article would be sufficient to trigger liability for the\n\n preparing of a derivative work.\n\n 3. Vicarious Infringement\n\n \u201c[A] defendant can . . . be secondarily liable for another\u2019s copyright infringement under\n\n principles of vicarious and contributory liability.\u201d 148 Vicarious liability for copyright\n\n infringement \u201cattaches when the secondary infringer has \u2018an obvious and direct financial interest\n\n in the exploitation of the copyrighted materials\u2019 and \u2018the right and ability to supervise\u2019 the direct\n\n\n\n\n 145\n See id. at 1084\u201387 (emphasizing that the court\u2019s task is to determine whether it is in the interests of justice to\n permit the new legal theory to move forward).\n 146\n Pl.\u2019s Reply 11.\n 147\n See DUCivR 7-1(a)(3) (\u201cA party may not make a motion . . . in a response or reply. Any motion must be\n separately filed.\u201d).\n 148\n Diversey v. Schmidly, 738 F.3d 1196, 1204 (10th Cir. 2013).\n\n 23\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2672 Page 24 of 41\n\n\n\n\n infringer.\u201d 149 Trunk Archive argues that CBM and Mr. Best are liable for vicarious\n\n infringement. 150 Defendants argue that there are genuine disputes of fact on both elements. 151\n\n i. Right and Ability to Supervise the Infringing Activity\n\n Defendants argue that CBM and Mr. Best do not have the ability to supervise the\n\n infringing activities because users can post articles without their knowledge or consent. 152 Trunk\n\n Archive argues that CBM and Best have \u201cthe right and ability to supervise all content that is\n\n posted to\u201d CBM\u2019s website, and that it is irrelevant whether they chose to exercise that right at\n\n any given time. 153\n\n There is no genuine dispute of fact that CBM and Mr. Best have the right to supervise the\n\n direct infringers here. Notably, it is immaterial for purposes of this prong whether the direct\n\n infringer \u201cis considered, as a technical matter, an employee or an independent contractor[.]\u201d 154\n\n CBM operates a website on which users can post articles. 155 Mr. Best is the owner and president\n\n of CBM. 156 In response to Trunk Archive\u2019s interrogatories, Mr. Best stated that he \u201chas the\n\n ability to view all content posted on the website and all content queued for future posts,\u201d and that\n\n\n\n\n 149\n Greer, 83 F.4th at 1287 (quoting Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963));\n accord Diversey, 738 F.3d at 1196 (\u201cVicarious liability attaches when the defendant \u2018has the right and ability to\n supervise the infringing activity\u2019 and \u2018has a direct financial interest in such activities.\u201d (quoting Gershwin Publ\u2019g\n Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971))); Metro-Goldwyn-Mayer Studios Inc. v.\n Grokster, Ltd., 545 U.S. 913, 930 (2005) (noting that vicarious infringement occurs when the defendant profits from\n direct infringement \u201cwhile declining to exercise a right to stop or limit it\u201d); see also 6 Patry on Copyright \u00a7\u00a7 21:62,\n 21:66\u201321:68.\n 150\n Pl.\u2019s Mot. 13\u201317.\n 151\n Def.\u2019s Opp\u2019n 12\u201317.\n 152\n Id. 14.\n 153\n Pl.\u2019s Mot. 14; see also Pl.\u2019s Reply 8\u201311.\n 154\n Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963).\n 155\n See Best Decl. \u00b6 5; Def. Best Little Sites Responses to Pl.\u2019s First Set of Interrogatories, Response No. 2, ECF No.\n 102-1 Ex. 37.\n 156\n CBM\u2019s and Best\u2019s Answer & Counterclaim \u00b6\u00b6 25\u201327.\n\n 24\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2673 Page 25 of 41\n\n\n\n\n he has the ability to \u201cedit the content of any post or delete any post.\u201d 157 Furthermore, in his\n\n declaration submitted along with his opposition to Trunk Archive\u2019s motion for summary\n\n judgment, Mr. Best declared that \u201cCBM has strict policies regarding copyrighted images or\n\n content. Any content found to contain copyrighted content or copyrighted images is removed\n\n immediately.\u201d 158 CBM\u2019s Terms of Service make clear that CBM forbade users from posting\n\n copyrighted content and that CBM could remove content posted in violation of its policies. 159\n\n Accordingly, there is no genuine dispute that Mr. Best had the right to control content posted by\n\n freelance contributors, such as Mr. Cassidy and Mr. Wilding, at least when that content included\n\n copyrighted material. As an officer of CBM, Mr. Best\u2019s rights can be imputed to CBM. 160\n\n The next question is whether CBM and Mr. Best had the ability to supervise the direct\n\n infringement here. According to CBM and Mr. Best, they lacked the ability to supervise the\n\n direct infringement because it is practically impossible to review each article before it is\n\n published, and indeed, they do not review the work of freelance users before it is published. 161\n\n Put another way, CBM and Best suggest that their lack of actual knowledge as to the content of\n\n the articles posted on CBM\u2019s website negates any vicarious liability for copyright infringement.\n\n However, \u201c[v]icarious liability has no knowledge requirement, based as it is on the common law\n\n\n 157\n Defendant Nathan Best\u2019s Responses to Pl.\u2019s First Set of Requests for Admission, Response No. 2, ECF No. 102-\n 1 Ex. 39. However, in his response to interrogatories, Mr. Best also stated that he did not have the \u201cabsolute right to\n reject any content\u201d appearing on CBM\u2019s website. Id. Response No. 25. In light of the facts showing that Mr. Best\n and CBM could remove copyrighted content from the website, the court finds this statement to be irrelevant.\n 158\n Decl. of Nathan Best in Support of Defendants\u2019 Opp\u2019n to Pl.\u2019s Mot. for Summ. J. \u00b6 6, ECF No. 109-1 Ex. A; see\n also Comic Book Movie Copyright Policies, ECF No. 109-1 Ex. D.\n 159\n See CBM Terms of Service, ECF No. 109-1 Ex. F.\n 160\n An entity, of course, can only act through its officers or agents. E.g., Lane v. Provo Rehabilitation & Nursing,\n 2018 UT App 10, \u00b6 27, 414 P.3d 991.\n 161\n Defs.\u2019 Opp\u2019n 14; Best Decl. \u00b6 5 (\u201cBecause users can immediately publish or post their content on the website, I\n am unable to monitor and proofread every article prior to its publishing.\u201d); id. \u00b6 10 (\u201cDefendants Cassidy and\n Wilding are freelance journalists and users of CBM\u2019s Website who post content. CBM and I do not directly\n supervise their work and we do not review their work prior to them publishing.\u201d).\n\n 25\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2674 Page 26 of 41\n\n\n\n\n doctrine of respondeat superior.\u201d 162 And as Mr. Best\u2019s responses to Trunk Archive\u2019s\n\n interrogatories and his declaration show, Mr. Best and CBM could and did supervise activity on\n\n CBM\u2019s website, including conduct that amounted to copyright infringement. Contrary to their\n\n suggestion, the inquiry is not whether they are \u201ccapable of preventing all infringing activity on\n\n the website.\u201d 163 Indeed, seminal cases in this area have found vicarious liability despite any lack\n\n of actual temporal control over the infringing activity. 164\n\n Accordingly, there is no genuine dispute of material fact on this element.\n\n ii. Direct Financial Interest\n\n Defendants argue this element requires that the infringing material act as a draw for\n\n readers, and that such a fact is not supported by the record here. 165 Trunk Archive argues that it\n\n must only show that the infringing material was a draw, not necessarily the main draw, for\n\n readers. 166 \u201cThe essential aspect of the \u2018direct financial benefit\u2019 inquiry is whether there is a\n\n causal relationship between the infringing activity and any financial benefit a defendant reaps,\n\n regardless of how substantial the benefit is in proportion to a defendant\u2019s overall profits.\u201d 167 The\n\n Ninth Circuit has explored this issue in the context of websites a handful of times, and has held\n\n that \u201c[a] website owner can receive a direct financial benefit from the presence of infringing\n\n\n 162\n Greer, 83 F.4th at 1287 (citing Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 262 (9th Cir. 1996)).\n 163\n Defs.\u2019 Opp\u2019n 14.\n 164\n Shapiro, Bernstein & Co., 316 F.2d at 307 (\u201c[T]he cases are legion which hold the dance hall proprietor liable for\n the infringement of copyright resulting from the performance of a musical composition by a band or orchestra whose\n activities provide the proprietor with a source of customers and enhanced income. He is liable whether the\n bandleader is considered, as a technical matter, an employee or an independent contractor, and whether or not the\n proprietor has knowledge of the compositions to be played or any control over their selection.\u201d (citing Buck v.\n Jewell-LaSalle Realty Co., 283 U.S. 191, 198\u201399 (1931))); see also Greer, 83 F.4th at 1287 (citing Shapiro,\n Bernstein & Co with approval in setting forth the rule regarding vicarious liability).\n 165\n Defs.\u2019 Opp\u2019n 15\u201317.\n 166\n Pl.\u2019s Mot. 13\u201316.\n 167\n Giganews, 847 F.3d at 673 (quoting Ellison, 357 F.3d at 1079) (emphasis removed); see also Shapiro, Bernstein\n & Co., 316 F.2d at 307.\n\n 26\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2675 Page 27 of 41\n\n\n\n\n material on his or her website, but only \u2018where the availability of infringing material acts as a\n\n draw for customers.\u2019\u201d 168\n\n The undisputed material facts make clear that CBM and Mr. Best had a financial interest\n\n in articles posted on CBM\u2019s website. CBM received revenue from advertisers for the articles at\n\n issue. 169 Likewise, Mr. Best was compensated as the owner of CBM. 170 Trunk Archive, however,\n\n has failed to present evidence that shows that there is no genuine dispute of fact that the Star\n\n Wars Photographs were a draw for readers. While some articles directly call attention to a given\n\n photograph, 171 others do not. 172 Put another way, for the bulk of the articles at issue, it is not\n\n sufficiently clear that readers would have visited CBM\u2019s website partly to view the Star Wars\n\n Photographs. Trunk Archive has not made a sufficient showing on this element to justify\n\n summary judgment in its favor.\n\n In sum, though Trunk Archive has shown that there is no genuine dispute that CBM and\n\n Mr. Best had the right and ability to supervise the infringing activity, a genuine dispute of fact\n\n\n\n 168\n Erickson Productions, Inc. v. Kast, 921 F.3d 822, 829 (9th Cir. 2019) (quoting Ellison, 357 F.3d at 1078)).\n 169\n See CBM\u2019s and Best\u2019s Answer and Counterclaim \u00b6\u00b6 28, 75; see also ECF no. 104-3 Ex. 36.\n 170\n See Best\u2019s Resp. to Pl.\u2019s First Set of Requests for Admission, Response No. 2.\n 171\n See \u201cSTAR WARS: THE LAST JEDI Actress Laura Dern Shares New Image of Vice Admiral Amilyn Holdo\u201d;\n \u201cSTAR WARS: THE RISE OF SKYWALKER \u2013 12 Biggest Reveals and Spoilers From Vanity Fair\u2019s Cover\n Story\u201d; \u201cSTAR WARS: THE RISE OF SKYWALKER Behind The Scenes Videos Features New Aliens And Cast\n Interviews.\u201d\n 172\n See \u201cSTAR WARS: THE LAST JEDI International TV Spot Features Benicio Del Toro As the Mysterious DJ\u201d;\n \u201cSTAR WARS: THE LAST JEDI\u2019s Mark Hamill Shares a Lovely Tribute to Carrie Fisher One Year After Her\n Passing\u201d; \u201cBillie Lourd Shares A Touching Tribute to Carrie Fisher On the Second Anniversary of Her Passing\u201d;\n \u201cSTAR WARS: THE RISE OF SKYWALKER Has A Very Interesting Alternate Title In Japan\u201d; \u201cSTAR WARS:\n THE RISE OF SKYWALKER Star Daisy Ridley Promises A \u2018Brilliant End\u2019 to the Story\u201d; \u201cSTAR WARS: THE\n RISE OF SKYWALKER\u2019s Runtime Possible Revealed Along With Some Potential SPOILERS\u201d; \u201cSTAR WARS:\n THE RISE OF SKYWALKER \u2013 Rey And Kylo Ren Clash On New Empire Magazine Covers\u201d; \u201cSTAR WARS:\n THE RISE OF SKYWALKER Final Trailer Reportedly Scheduled for October 21\u201d; \u201cSTAR WARS: THE RISE OF\n SKYWALKER\u2019s Oscar Isaac Blames \u2018Disney Overlords\u2019 For No Poe/Finn Romance\u201d; \u201cSTAR WARS: THE RISE\n OF SKYWALKER Remains #1 At the Box Office As It Passes $900M Worldwide\u201d; \u201cLuke Skywalker\u2019s Big STAR\n WARS: THE RISE OF SKYWALKER Scene Was The Result of Reshoots\u201d; \u201cSTAR WARS: THE RISE OF\n SKYWALKER Passes $500 Million At the Domestic Box Office.\u201d\n\n 27\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2676 Page 28 of 41\n\n\n\n\n remains as to whether CBM and Mr. Best had a direct financial interest in the infringing\n\n activities. Accordingly, while summary judgment in favor of Trunk Archive is appropriate on its\n\n copyright infringement claim against Mr. Cassidy and Mr. Wilding, it is inappropriate on Trunk\n\n Archive\u2019s copyright infringement claim against CBM and Mr. Best. 173\n\n III. Defenses\n\n Trunk Archive also moves for summary judgment as to each of Defendants\u2019 affirmative\n\n defenses. 174 The court addresses only those affirmative defenses that could preclude entry of\n\n judgment for Trunk Archive. 175 Put another way, the court considers only those items\n\n Defendants pled as affirmative defenses that indeed are affirmative defenses to Trunk Archive\u2019s\n\n copyright infringement claim.\n\n\n\n\n 173\n Trunk Archive also moves for summary judgment on CBM\u2019s and Mr. Best\u2019s counterclaim, which seeks a\n declaration of non-infringement. See Pl.\u2019s Mot. 17\u201326. Given that the court has denied Trunk Archive summary\n judgment on its claim of vicarious infringement, it likewise denies Trunk Archive summary judgment on this\n counterclaim.\n 174\n Pl.\u2019s Mot. 26\u201339. In their pleadings, Defendants collectively proliferate 28 affirmative defenses: failure to state a\n claim; lack of damages; public policy; failure to mitigate damages; DMCA safe harbor; res judicata and claim\n splitting; lack of knowledge; lack of material contribution to infringement; lack of intent; takedown of copyrighted\n material; lack of DMCA take-down notice; embedding; proximate cause and third-party acts; Plaintiff\u2019s bad faith;\n unjust enrichment; lack of Defendants\u2019 bad faith; unclean hands; Defendants acted in good faith; self-inflicted harm;\n lack of vicarious liability; latches and waiver; copyright misuse; First Amendment; fair use; invalid copyrights;\n speculative damages; de minimis use. CBM\u2019s and Best\u2019s Answer 11\u201314; Cassidy\u2019s Answer 13\u201316; Wilding\u2019s\n Answer 12\u201316. The court struck a number of these defenses under Federal Rule of Civil Procedure 12(f). See Order\n Granting in Part and Denying in Part [52] Mot. to Dismiss the Counterclaim and to Strike Certain Affirmative\n Defenses and [58] Motion to Strike Certain Affirmative Defenses, ECF No. 70.\n 175\n See Valley Fresh Produce, Inc. v. W. Skyways, Inc., No. 17-cv-01450, 2019 WL 4695668 (D. Colo. Sept. 25,\n 2019) (\u201c[A] plaintiff moving for summary judgment is not obligated to negate affirmative defenses, but an\n affirmative defense will negate summary judgment where each element of the affirmative defense is supported by\n summary judgment evidence.\u201d (quoting McCollough v. Johnson, Rodenberg & Lauinger, 587 F.Supp.2d 1170, 1176\n (D. Mont. 2008)); see also Assessment Techs. Inst., LLC v. Parkes, 588 F.Supp.3d 1178, 1189 (D. Kan. 2022).\n\n 28\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2677 Page 29 of 41\n\n\n\n\n A. Fair Use\n\n Mr. Cassidy\u2019s and Mr. Wilding\u2019s twenty fifth defenses assert the doctrine of fair use. 176\n\n \u201c[F]air use is an affirmative defense\u201d to copyright infringement. 177 17 U.S.C. \u00a7 107 provides that\n\n notwithstanding the exclusive rights of the copyright owner, \u201cthe fair use of a copyrighted work\n\n . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or\n\n research, is not an infringement of copyright.\u201d 178 The statute specifies four factors to consider in\n\n determining whether the use of a work was fair use: \u201c(1) the purpose and character of the use,\n\n including whether such use is of a commercial nature or is for nonprofit educational purposes;\n\n (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in\n\n relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential\n\n market for or value of the copyrighted work.\u201d 179 Trunk Archive argues that all four factors weigh\n\n against a finding of fair use, and that summary judgment is appropriate on this affirmative\n\n defense. 180 Defendants counter that the undisputed facts show that their use of the Star Wars\n\n Photographs was fair use. 181\n\n 1. Purpose and Character of Use\n\n The first fair use factor \u201cconsiders the reasons for, and nature of, the copier\u2019s use of an\n\n original work. The \u2018central\u2019 question it asks is \u2018whether the new work merely \u201csupersede[s] the\n\n objects\u201d of the original creation . . . or instead adds something new, with a further purpose or\n\n\n\n\n 176\n Cassidy\u2019s Answer 16; Wilding\u2019s Answer 15.\n 177\n Cambell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).\n 178\n 17 U.S.C. \u00a7 107.\n 179\n Id.\n 180\n Pl.\u2019s Mot. 34\u201337.\n 181\n Defs.\u2019 Opp\u2019n 21\u201328.\n\n 29\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2678 Page 30 of 41\n\n\n\n\n different character.\u2019\u201d 182 \u201cA use that has a further purpose or different character is said to be\n\n \u2018transformative.\u2019\u201d 183 Notably, \u201c[m]any secondary works add something new. That alone does not\n\n render such uses fair.\u201d 184 Likewise, courts should consider whether the work is commercial or\n\n nonprofit in nature: \u201cThe commercial nature of the use is not dispositive. But it is relevant.\u201d 185\n\n The purposes listed in the preamble to Section 107 guide this inquiry. 186\n\n The court considers first whether the use of copyrighted images in the articles\n\n transformed the purpose of the photographs. According to Defendants, the Star Wars\n\n Photographs were added to the articles in order to contribute to their function in providing news,\n\n information, and entertainment. 187 They also assert that \u201cTrunk Archive\u2019s intended purpose is to\n\n monetize the [Star Wars Photographs] by obtaining licensing fees.\u201d 188 That a copyright owner\n\n has an interest in obtaining licensing fees says nothing about the purpose of the work itself. Next,\n\n that the articles themselves might serve news and entertainment purposes does not necessarily\n\n mean that the use of the copyrighted works in the articles transformed the copyrighted works\n\n themselves. Indeed, \u201cthe use of an image solely to illustrate the content of that image, in a\n\n commercial capacity,\u201d is not necessarily fair use.\u201d 189 Put another way, unless Defendants\u2019\n\n articles \u201ccomment on, criticize, or report news about the [Star Wars Photographs] themselves,\u201d\n\n the purpose and function factor will not weigh in their favor. 190 This conclusion is compelled by\n\n\n 182\n Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 527\u201328 (2023) (quoting Campbell, 510\n U.S. at 579.\n 183\n Id. at 529 (quoting Campbell, 510 U.S. at 579).\n 184\n Id. at 529.\n 185\n Id. at 531 (citations omitted).\n 186\n Id. at 528.\n 187\n Defs.\u2019 Opp\u2019n 24.\n 188\n Id.\n 189\n Otto v. Hearst Commc\u2019ns, Inc., 345 F.Supp.3d 412, 428 (S.D.N.Y. 2018).\n 190\n Barcroft Media, Ltd v. Coed Media Grp., LLC, 297 F.Supp.3d 339, 352 (S.D.N.Y. 2017) (emphasis removed);\n accord Werner v. Red v. Blue Media Inc., No. 2:20-cv-01024, 2021 WL 3560588, at *3 (C.D. Cal.. Aug. 9, 2021)\n\n 30\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2679 Page 31 of 41\n\n\n\n\n the text of Section 107, which focuses on the \u201cuse\u201d of the copyrighted work itself. Here, while\n\n some of the articles at issue were indeed dedicated to sharing news about the photographs\n\n themselves, 191 most plainly were not. 192\n\n The court also considers the commercial nature of the photographs\u2019 use in the articles.\n\n Defendants suggest that to the extent that the articles were monetized via advertisements, they\n\n had a fairly limited commercial nature. 193 Some courts have found that when a defendant\n\n receives only a small amount of money generated through online advertising from articles\n\n\n (\u201cA defendant\u2019s use of a copyrighted image in news reporting will generally not tip the first factor in favor of fair\n use where the image simply illustrates the subject matter of a report.\u201d (citing Monge v. Maya Magazines, Inc., 688\n F.3d 1164, 1173 (9th Cir. 2012); Los Angeles News Serv. v. KCAL-TV Channel 9, 108 F.3d 1119, 1121\u201322 (9th Cir.\n 1997))).\n 191\n See \u201cSTAR WARS: THE LAST JEDI Actress Laura Dern Shares New Image of Vice Admiral Amilyn Holdo\u201d\n (sharing news about the Holdo Photograph); \u201cSTAR WARS: THE RISE OF SKYWALKER Behind The Scenes\n Videos Features New Aliens And Cast Interviews\u201d (commenting on the R2-D2 Photograph, Production\n Photographs, Finn Photograph, and Hux Photograph).\n 192\n See \u201cSTAR WARS: THE LAST JEDI International TV Spot Features Benicio Del Toro As the Mysterious DJ\u201d\n (describing Mr. Del Toro\u2019s character DJ and using the DJ Photograph as illustration); \u201cSTAR WARS: THE LAST\n JEDI\u2019s Mark Hamill Shares a Lovely Tribute to Carrie Fisher One Year After Her Passing\u201d (sharing news about\n Mark Hamill\u2019s social media post on the one-year anniversary of Carrie Fisher\u2019s death and using the Skywalker\n Photograph as illustration); \u201cBillie Lourd Shares A Touching Tribute to Carrie Fisher On the Second Anniversary of\n Her Passing\u201d (sharing news about Billie Lourd\u2019s social media post on the two-year anniversary of Carrier Fisher\u2019s\n death and using the Connix Photograph as illustration); \u201cSTAR WARS: THE RISE OF SKYWALKER \u2013 12 Biggest\n Reveals and Spoilers From Vanity Fair\u2019s Cover Story\u201d (using the Millennium Falcon photograph as illustration for\n an article discussing potential spoilers revealed by the Vanity Fair article); \u201cSTAR WARS: THE RISE OF\n SKYWALKER Has A Very Interesting Alternate Title In Japan\u201d (using the Lightsaber Photograph as illustration in\n an article discussing the title of Star Wars: The Rise of Skywalker); \u201cSTAR WARS: THE RISE OF SKYWALKER\n Star Daisy Ridley Promises A \u2018Brilliant End\u2019 to the Story\u201d (using the Lightsaber Photograph as illustration in an\n article about Ms. Ridley\u2019s comments on a talk show); \u201cSTAR WARS: THE RISE OF SKYWALKER\u2019s Runtime\n Possible Revealed Along With Some Potential SPOILERS\u201d (using the R2-D2 Photograph as illustration in an article\n discussing the score to Star Wars: The Rise of Skywalker); \u201cSTAR WARS: THE RISE OF SKYWALKER \u2013 Rey\n And Kylo Ren Clash On New Empire Magazine Covers\u201d (using the Lightsaber Photograph as illustration in an\n article discussing magazine covers showing characters Kylo Ren and Rey); \u201cSTAR WARS: THE RISE OF\n SKYWALKER Final Trailer Reportedly Scheduled for October 21\u201d (using the Lightsaber Photograph as illustration\n in an article discussing a movie trailer); \u201cSTAR WARS: THE RISE OF SKYWALKER\u2019s Oscar Isaac Blames\n \u2018Disney Overlords\u2019 For No Poe/Finn Romance\u201d (using the Dameron Photograph as illustration discussing Mr.\n Isaac\u2019s comments in an interview with IGN); \u201cSTAR WARS: THE RISE OF SKYWALKER Remains #1 At the\n Box Office As It Passes $900M Worldwide\u201d (using the Lightsaber Photograph as illustration in an article discussing\n worldwide ticket sales); \u201cLuke Skywalker\u2019s Big STAR WARS: THE RISE OF SKYWALKER Scene Was The\n Result of Reshoots\u201d (using the R2-D2 Photograph as illustration in an article discussing a scene in Star Wars: The\n Rise of Skywalker); \u201cSTAR WARS: THE RISE OF SKYWALKER Passes $500 Million At the Domestic Box\n Office\u201d (using the Lightsaber Photograph as illustration in an article discussing domestic ticket sales).\n 193\n Defs.\u2019 Opp\u2019n 25.\n\n 31\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2680 Page 32 of 41\n\n\n\n\n incorporating copyrighted works, and does not charge fees to access the articles or sell the\n\n copyrighted works directly, the commercial nature of the use is minimal. 194 Here, 15 articles\n\n generated $1,166.93, with a mean revenue generated per article of $77.79. 195 That the\n\n commercial nature was only minimal does not affect the analysis for those articles that plainly\n\n did not use the photographs for a transformed purpose. Both facts point in the same direction,\n\n notwithstanding that the commercial nature was minimal. But for those articles that plainly had a\n\n purpose of sharing news or commenting on the images themselves, commercial use may\n\n overcome the transformative nature of the use. 196 Here, the article containing the Holdo\n\n Photograph generated only $27.24 in revenue for CBM, while the article containing the\n\n Production Photographs, among others, generated $51.43 in revenue for CBM. 197 While not\n\n particularly significant, the court finds that whether the commercial nature of the use outweighs\n\n its purpose is a jury question.\n\n The court finds that for the bulk of the articles, the purpose and character of the use\n\n weighs against a finding of fair use. 198 Defendants have not pointed to evidence that would\n\n create a genuine dispute of material fact as to those articles. However, for those articles that\n\n comment directly on the images themselves, the court finds that there is at least a jury question\n\n whether the purpose and character of the use weighs in favor of a finding of fair use. 199\n\n\n\n\n 194\n Philpot v. Media Rsch. Ctr. Inc., 279 F.Supp.3d 708, 717\u201318 (E.D. Va. 2018).\n 195\n See ECF No. 104-3 Ex. 36 (listing the revenue generated per article).\n 196\n See Andy Warhol Found., 598 U.S. at 531 (\u201c[Commercial nature] is to be weighed against the degree to which\n the use has a further purpose or different character.\u201d).\n 197\n See ECF No. 104-3 Ex. 36.\n 198\n See sources cited supra note 192.\n 199\n See sources cited supra note 191.\n\n 32\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2681 Page 33 of 41\n\n\n\n\n 2. Nature of the Copyrighted Work\n\n The Supreme Court has observed, for purposes of the second fair use factor, that \u201cfair use\n\n is more likely to be found in factual works than in fictional works.\u201d 200 Put another way, the more\n\n creative a copyrighted work is, the more this factor tilts in favor of the copyright owner. 201 Trunk\n\n Archive argues that the Star Wars Photographs were \u201chighly creative in nature.\u201d 202 Defendants\n\n do not discuss whether the Star Wars Photographs are factual or creative works. 203 Therefore,\n\n Defendants have failed to carry their burden in resisting summary judgment on this point, and the\n\n court will treat the Star Wars Photographs as more creative than factual.\n\n Defendants argue that the fact that the photographs were previously published in Vanity\n\n Fair tilts this factor in their favor. 204 While some cases have embraced this proposition, 205 the\n\n court declines to do so. The Supreme Court has held that \u201cCongress intended the unpublished\n\n nature of the work to figure prominently in fair use analysis,\u201d and that \u201cthe scope of fair use is\n\n narrower with respect to unpublished works.\u201d 206 However, that use of an unpublished work is\n\n less likely to be fair, under Section 107, does not necessarily mean that use of a published work\n\n is more likely to be fair. 207 If such were the case, then while the copyright holder\u2019s right to first\n\n\n\n\n 200\n Stewart v. Abend, 495 U.S. 207, 237 (1990) (citing 3 Nimmer on Copyright \u00a7 1305[A]); see also 4 Patry on\n Copyright \u00a7 10.138.\n 201\n See Katz v. Google Inc., 802 F.3d 1178, 1183 (11th Cir. 2015) (per curiam).\n 202\n Pl.\u2019s Mot. 36.\n 203\n Cf. Defs.\u2019 Opp\u2019n 25\u201326.\n 204\n Defs.\u2019 Opp\u2019n 25\u201326.\n 205\n E.g., Katz, 802 F.3d at 1183; Kelly v. Arriba Soft Corp., 336 F.3d 811, 810 (9th Cir. 2003).\n 206\n Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 553, 564 (1985); see also id. at 554 (\u201cWe\n conclude that the unpublished nature of a work is \u2018[a] key, though not necessarily determinative, factor\u2019 tending to\n negate a fair use.\u201d (quoting S. Rep. No. 94-473, at 64 (1975)).\n 207\n See Dr. Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443, 456 (9th Cir. 2020) (\u201cBut the converse is not\n necessarily true; neither Harper & Row nor any principle of fair use counsels that the publication of the copyrighted\n work weighs in favor of fair use.\u201d (citing 4 Patry on Copyright \u00a7 10:139.30)).\n\n 33\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2682 Page 34 of 41\n\n\n\n\n publication would be protected, 208 a copyright holder\u2019s other rights\u2014for instance, the exclusive\n\n right to display one\u2019s work publicly\u2014would lose some of their force. That makes little sense in\n\n the context of the Copyright Act. Accordingly, on this record, the publication status of the\n\n photographs does not weigh in either side\u2019s favor.\n\n Next, Defendants suggest that because Trunk Archive has \u201callowed the widespread\n\n dissemination of the [Star Wars] Photographs across the internet,\u201d this factor should tilt in their\n\n favor. 209 Defendants cite no caselaw for this proposition. For starters, Defendants offer no\n\n evidence that the \u201cwidespread dissemination\u201d they refer to was not authorized by Trunk Archive.\n\n Next, even assuming that others\u2019 use was unauthorized, that does not explain why this factor\u2014\n\n the nature of the copyrighted work\u2014should tilt in their favor. Indeed, Defendants\u2019 argument\n\n appears to imply that if a copyright holder either licenses its material to others or fails to\n\n successfully curb dissemination of the work through infringement actions, it will lose some of its\n\n exclusive rights. How a copyright holder has chosen to handle either licensing or infringement\n\n with other entities does not inform the fair use inquiry.\n\n Therefore, the court finds that this factor tilts against a finding of fair use for all the Star\n\n Wars Photographs.\n\n 3. Amount and Substantiality\n\n \u201cThe third factor asks whether \u2018the amount and substantiality of the portion used in\n\n relation to the copyrighted work as a whole\u2019 . . . are reasonable in relation to the purpose of the\n\n\n\n\n 208\n See Harper & Row, 471 U.S. at 552\u201353 (suggesting that the right of first publication is a primary driver for\n considering the unpublished nature of the copyrighted work in the fair use analysis).\n 209\n Defs.\u2019 Opp\u2019n 26.\n\n 34\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2683 Page 35 of 41\n\n\n\n\n copying.\u201d 210 Therefore, this factor often hinges on the first factor. 211 Here, Defendants displayed\n\n nearly all of the Star Wars Photographs without alteration. 212 For those images that Defendants\n\n were commenting on directly, 213 Defendants necessarily must have displayed the whole of each\n\n photograph in order to achieve their legitimate purposes. However, for those images that\n\n Defendants used only for illustration of their article, 214 displaying the whole image for this\n\n purpose was unreasonable. Accordingly, this factor is balanced the same as the first factor.\n\n 4. Effect of the Use on the Value of the Work\n\n The fourth factor \u201crequires courts to consider not only the extent of market harm caused\n\n by the particular actions of the alleged infringer, but also \u2018whether unrestricted and widespread\n\n conduct of the sort engaged in by the defendant . . . would result in a substantially adverse\n\n impact on the potential market\u2019 for the original.\u201d 215 \u201cSince fair use is an affirmative defense, its\n\n proponent would have difficulty carrying the burden of demonstrating fair use without favorable\n\n evidence about relevant markets.\u201d 216\n\n Defendants argue that because Trunk Archive failed to point to evidence that might tilt\n\n this factor in its favor, this factor therefore tilts towards Defendants. 217 Not so. As the parties\n\n\n\n 210\n Campbell, 510 U.S. at 586 (citations omitted).\n 211\n See, e.g., Tres\u00f3na Multimedia, LLC v. Burbank High Sch. Vocal Music Ass\u2019n, 953 F.3d 638, 650 (9th Cir. 2020)\n (\u201cEven \u2018entire verbatim reproductions are justifiable where the purpose of the work differs [enough] from the\n original.\u2019\u201d (quoting Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 803 n.8 (9th Cir. 2003))).\n 212\n But see \u201cSTAR WARS: THE RISE OF SKYWALKER\u2019S Oscar Isaac Blames \u2018Disney Overlords\u2019 For No\n Poe/Finn Romance\u201d (cropping the image).\n 213\n See sources cited supra note 191.\n 214\n See sources cited supra note 192.\n 215\n Cambpell, 510 U.S. at 590 (quoting 3 Nimmer on Copyright \u00a7 13.05[A][4] (1993)); accord Harper & Row, 471\n U.S. at 568 (\u201c[T]o negate fair use one need only show that if the challenged use \u2018should become widespread, it\n would adversely affect the potential market for the copyrighted work.\u2019\u201d (quoting Sony Corp. of Am. v. Universal\n City Studios, Inc., 464 U.S. 417, 451 (1984))).\n 216\n Campbell, 510 U.S. at 590.\n 217\n Defs.\u2019 Opp\u2019n 27.\n\n 35\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2684 Page 36 of 41\n\n\n\n\n asserting an affirmative defense, Defendants have the burden of establishing its applicability. 218\n\n Defendants have not done so. Instead, Defendants discuss the other websites on which Trunk\n\n Archive\u2019s photographs are displayed, and the steps Trunk Archive could take to protect them. 219\n\n Those arguments do not aid Defendants in establishing this factor, as they do not speak to\n\n whether widespread infringement would result in an impact on the market for the original. At\n\n best, this factor is neutral, as neither party has presented evidence one way or the other. 220\n\n In sum, for the group of articles in which Defendants used the Star Wars Photographs to\n\n merely illustrate their articles, 221 at least the first, second, and third factors lean against a finding\n\n of fair use. Therefore, the factors considered together do not support a fair use defense for those\n\n articles. No reasonable jury could conclude otherwise, and Defendants have not shown that there\n\n are genuine factual disputes for trial on those articles. Accordingly, for this group of articles,\n\n Trunk Archive is entitled to summary judgment. However, for those articles in which Defendants\n\n comment on the Star Wars Photographs directly, 222 only the second factor tilts in favor of Trunk\n\n Archive; the first and third factors tilt toward a finding of fair use. For those articles, there is a\n\n jury question as to whether this use of the Star Wars Photographs was fair use.\n\n B. DMCA Safe Harbor\n\n The Digital Millennium Copyright Act (\u201cDMCA\u201d) exempts service providers from\n\n liability for copyright infringement related to certain acts. 223 One such safe harbor provision\n\n\n 218\n Campbell, 510 U.S. at 590.\n 219\n See Defs.\u2019 Opp\u2019n 27\u201328.\n 220\n Cf. Campbell, 510 U.S. at 594 (\u201c[I]t is impossible to deal with the fourth factor except by recognizing that a silent\n record on an important factor bearing on fair use disentitled the proponent of the defense . . . to summary\n judgment.\u201d).\n 221\n See sources cited supra note 192.\n 222\n See sources cited supra note 191.\n 223\n See 17 U.S.C. \u00a7 512(a)\u2013(d).\n\n 36\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2685 Page 37 of 41\n\n\n\n\n provides that \u201c[a] service provider shall not be liable . . . for infringement of copyright by reason\n\n of the storage at the direction of a user of material that resides on a system or network controlled\n\n or operated by or for the service provider\u201d if certain conditions are met. 224 The court granted\n\n Trunk Archive judgment on the pleadings on this affirmative defense, given that CBM and Mr.\n\n Best have consistently disclaimed ownership of the servers on which the Star Wars Photographs\n\n are stored. 225 The undisputed material facts show that the Star Wars Photographs were not stored\n\n on servers owned by CBM and Mr. Best. Accordingly, this DMCA safe harbor defense is\n\n inapplicable. Defendants make no argument and present no evidence to show that the DMCA\n\n safe harbor provision is applicable in this case. 226 Accordingly, this defense does not preclude\n\n entry of summary judgment on Trunk Archive\u2019s claims.\n\n C. Res Judicata\n\n Defendants\u2019 sixth affirmative defense asserts that Trunk Archive\u2019s claims are barred by\n\n claim preclusion, issue preclusion, or claim splitting. 227 Claim preclusion requires three\n\n elements: \u201c(1) a judgment on the merits in the earlier action; (2) identity of the parties or their\n\n privies in both suits; and (3) identity of the cause of action in both suits.\u201d 228 Similarly, issue\n\n preclusion requires: (1) identity of issues; (2) final judgment on the merits in the earlier action;\n\n (3) identity of parties; and (4) a full and fair opportunity to litigate the issue in the prior action. 229\n\n\n\n 224\n 17 U.S.C. \u00a7 512(c)(1). In earlier briefing Defendants \u201ceffectively conceded the other three safe harbor defenses,\u201d\n see Court\u2019s Order on Judgment on the Pleadings 15, so the court does not reach whether they might be applicable\n here.\n 225\n See Court\u2019s Order on Judgment on the Pleadings 16\u201317, 18.\n 226\n Cf. Defs.\u2019 Opp\u2019n 31.\n 227\n CBM\u2019s and Best\u2019s Answer & Counterclaim 11; Cassidy\u2019s Answer 13; Wilding\u2019s Answer 13.\n 228\n Hatch v. Boulder Town Council, 471 F.3d 1142, 1149 (10th Cir. 2006) (quoting Yapp v. Excel Corp., 186 F.3d\n 1222, 1226 (10th Cir. 1999)).\n 229\n Park Lake Res. Ltd. Liab. v. U.S. Dep\u2019t of Agr., 387 F.3d 1132, 1136 (10th Cir. 2004) (quoting Dodge v. Cotter\n Corp., 203 F.3d 1190, 1198 (10th Cir. 2000)).\n\n 37\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2686 Page 38 of 41\n\n\n\n\n Finally, claim splitting occurs when two lawsuits involving the same parties and a common set of\n\n facts are filed. 230 Unlike claim preclusion, however, the rule against claim splitting is used\n\n primarily by courts to efficiently control their dockets, and therefore, does not require a final\n\n judgment on the merits. 231\n\n There is indeed another case, before this court, between Trunk Archive and CBM, in\n\n which copyright infringement is at issue. 232 However, the court denied an earlier motion to\n\n dismiss on the issue of claim splitting.233 Specifically, the court found that the claims at issue in\n\n the two cases were not identical, as they arose from separate transactions, and therefore did not\n\n involve a common set of facts. 234 In addition, the other case has not reached a final judgment on\n\n the merits, as it is currently pending trial. Finally, it is worth note that no dispositive motions\n\n were filed in the previous case, meaning that the court has not resolved any legal issues that\n\n might have a preclusive effect in this case. Accordingly, claim preclusion, issue preclusion, and\n\n claim splitting do not affect Trunk Archive\u2019s motion for summary judgment.\n\n Defendants point the court to their earlier opposition to Trunk Archive\u2019s motion to strike\n\n and note that the court declined to strike this defense. 235 However, Defendants\u2019 earlier opposition\n\n is inapposite. The only arguments raised in that briefing were specific to why striking a res\n\n judicata defense under Rule 12(f) was inappropriate. 236 Those arguments no longer carry any\n\n weight at the summary judgment stage. The Rule 12(f) standard is very different from the Rule\n\n\n 230\n See Katz v. Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011).\n 231\n Id. at 1217\u201318.\n 232\n See Best Little Sites v. Great Bowery, No. 2:19-cv-00319 (D. Utah).\n 233\n See Mem. Dec. and Order Denying [16] Defs.\u2019 Mot. to Dismiss Compl. or Suspend Case 4\u20138.\n 234\n Id. at 7.\n 235\n Def.\u2019s Opp\u2019n 31.\n 236\n See Best Little Sites and Nathan Best\u2019s Opp\u2019n to Mot. to Dismiss Counterclaim and Strike Certain Affirmative\n Defenses 10\u201311, ECF No. 64.\n\n 38\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2687 Page 39 of 41\n\n\n\n\n 56 standard. 237 As the parties with the burden of proof on this affirmative defense, Defendants\n\n must point to facts that create a genuine dispute of fact for trial in order to preserve this defense\n\n at this stage in the case. They have not done so. Accordingly, this defense does not preclude\n\n entry of summary judgment on Trunk Archive\u2019s claim.\n\n D. Copyright Misuse\n\n Defendants assert a defense of copyright misuse. 238 Trunk Archive argues that the court\n\n should not recognize such a defense, and that even assuming it does, the defense would not apply\n\n to Mr. Cassidy and Mr. Wilding\u2019s conduct. 239 Defendants make no substantive argument in\n\n opposition. 240\n\n Assuming that copyright misuse or abuse is indeed an affirmative defense to an\n\n infringement claim, 241 it would require proof that Trunk Archive violated antitrust laws through\n\n its copyright, or that it violated the public policies underlying copyright law. 242 Defendants have\n\n not pointed to any genuine dispute of fact that would be material to this defense. Accordingly,\n\n this putative defense does not preclude entry of summary judgment on Trunk Archive\u2019s claim.\n\n\n\n\n 237\n Compare Tiscareno v. Frasier, No. 2:07-cv-336, 2012 WL 1377886, at *13 (D. Utah 2012) (\u201c[M]otions to strike\n are disfavored and striking a defense is a drastic remedy. Generally, motions to strike are not granted unless the\n questionable material is prejudicial to the moving party.\u201d (citations omitted)) with Fed. R. Civ. P. 56(a).\n 238\n Cassidy\u2019s Answer 16; Wilding\u2019s Answer 15.\n 239\n Pl.\u2019s Mot. 32\u201334.\n 240\n See Defs.\u2019 Opp\u2019n 35 (\u201cFor the same reasons as discussed above in connection with its defenses of failure to state\n a claim, no damages, lack of knowledge, lack of intent, expeditions [sic] removal, embedding, no proximate\n damage, [and] bad faith, [sic] there remain disputed factual issues as to this defense.\u201d).\n 241\n But see Reliability Rsch. Inc. v. Comput. Assocs. Int\u2019l, Inc., 793 F.Supp. 68, 69 (E.D.N.Y. 1992) (suggesting that\n the existence of a defense of copyright misuse has not been solidly established). Neither the Tenth Circuit nor the\n Supreme Court has approved of the defense. See also 4 Nimmer on Copyright \u00a7 13.09[2][a].\n 242\n See Energy Intel. Grp., Inc. v. CHS McPherson Refinery, Inc., 300 F.Supp.3d 1456, 1373 (D. Kan. 2018); see\n also Live Face on Web, LLC v. Integrity Sols. Grp., Inc., 421 F.Supp.3d 1051, 1067 (D. Colo. 2019).\n\n 39\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2688 Page 40 of 41\n\n\n\n\n E. Statute of Limitations\n\n In their opposition, Defendants raise for the first time a statute of limitations defense to\n\n their use of the Star Wars Photographs in three of the articles at issue. 243 The Copyright Act\n\n provides for a three-year statute of limitations for civil actions. 244 Defendants argue this point as\n\n a subset of their failure to state a claim defense. 245 However, the two defenses are separate\n\n matters. 246 And under the Federal Rules of Civil Procedure, a statute of limitations defense is an\n\n affirmative defense that is waived if it is not pled. 247 The court declines to consider this belated\n\n defense.\n\n\n\n\n 243\n Defs.\u2019 Opp\u2019n 28\u201330.\n 244\n 17 U.S.C. \u00a7 507(b).\n 245\n Id.\n 246\n See Fed. R. Civ. P. 8(c), 12(b).\n 247\n See Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1302\u201304 (10th Cir. 2003).\n\n 40\n\fCase 2:21-cv-00567-DBB-JCB Document 118 Filed 07/15/24 PageID.2689 Page 41 of 41\n\n\n\n\n ORDER\n\n The court GRANTS IN PART and DENIES IN PART Plaintiff\u2019s motion for summary\n\n judgment. 248 Summary judgment in favor of Plaintiff is GRANTED against Defendants Cassidy\n\n and Wilding on Plaintiff\u2019s claim for direct copyright infringement of its display right as related\n\n to the copyrighted photographs contained in articles that use the copyrighted photograph merely\n\n as illustration. 249 Summary judgment in favor of Plaintiff is DENIED as to Plaintiff\u2019s claim for\n\n direct copyright infringement of its display right as related to the copyrighted photographs\n\n contained in articles that comment on the photographs themselves. 250 Summary judgment in\n\n favor of Plaintiff is likewise DENIED as to Plaintiff\u2019s claim for vicarious copyright infringement\n\n against CBM and Mr. Best. The court VACATES the portion of its prior opinion relating to the\n\n issue of embedding. 251\n\n Signed July 15, 2024.\n\n BY THE COURT\n\n\n ________________________________________\n David Barlow\n United States District Judge\n\n\n\n\n 248\n ECF No. 102.\n 249\n See ECF No. 102-1, Exs. 22\u201325, 27\u201335.\n 250\n See ECF No. 102-1, Exs. 21, 26.\n 251\n ECF No. 85.\n\n 41\n\f","ocr_status":2,"date_upload":"2024-07-16T01:18:56.006627-07:00","document_number":"118","attachment_number":null,"pacer_doc_id":"18306550318","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"Memorandum Decision AND Order on Motion for Summary Judgment","acms_document_guid":""}],"date_created":"2024-07-15T16:09:29.995470-07:00","date_modified":"2025-07-05T18:09:25.381896-07:00","date_filed":"2024-07-15","time_filed":"16:29:43","entry_number":118,"recap_sequence_number":"2024-07-15.001","pacer_sequence_number":355,"description":"MEMORANDUM DECISION & Order: Granting in part and denying in part 102 Motion for Summary Judgment. Summary judgment in favor of Plaintiff is GRANTED against Defendants Cassidy and Wilding on Plaintiffs claim for direct copyright infringement of its display right as related to the copyrighted photographs contained in articles that use the copyrighted photograph merely as illustration. Summary judgment in favor of Plaintiff is DENIED as to Plaintiffs claim for direct copyright infringement of its display right as related to the copyrighted photographs contained in articles that comment on the photographs themselves. Summary judgment in favor of Plaintiff is likewise DENIED as to Plaintiffs claim for vicarious copyright infringement against CBM and Mr. Best. The court VACATES the portion of its prior opinion relating to the issue of embedding. Signed by Judge David Barlow on 07/15/2024. (kpf) (Entered: 07/15/2024)","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=60493772&page_size=40"}