On Tuesday, a decision was reached in Philpot v. LM Communs. II of South Carolina, No.5:17-CV-173-CHB, 2018 U.S. Dist. LEXIS 113927 (E.D. Ky. July 10, 2018) concerning infringement of a copyright on a photo of Willie Nelson which the Defendant used to promote a concert without obtaining the permission of the copyright owner.
Plaintiff was not able to submit evidence that the photo used by the Defendant had copyright management information associated with it, and only took a screen grab of the photo used on LM's web site. The Defendant filed a motion for sanctions under Federal Rule of Civil Procedure 37 because of the Plaintiff's failure to respond to the Court's discovery orders. The Court denied the motion for sanctions solely on the basis of the fact that LM Communications did not certify that it conferred with the Plaintiff in an effort to get the required responses. Philpot produced documents late, and then appeared for a rescheduled deposition which had been cancelled because of the missing document production.
The Plaintiff moved to sanction LM Communications for failing to preserve a native copy of the photo which it possessed when it received the cease and desist order, and sought an adverse inference that LM removed the copyright management metadata. The Court faulted the Plaintiff for redacting most of the contents of its cease and desist letter, which makes it impossible to determine if the Defendant was aware that evidence in the digital file was relevant to the Plaintiff's claim. Philipot inspected the photo on LM's website before it was deleted and did not find copyright management information. The absence of such information was not a basis for concluding that the Defendant had removed it.
"He suggests in a conclusory fashion that the file in Defendant's possession at the time it was removed from its website would have provided him more information about the absence of copyright management information than he could glean during his original investigation of this matter, but offers nothing more about what that information might be or how it is relevant to his § 1202 claim. This is not enough to support the sanction he seeks - an inference that Defendant removed the copyright management information. He would have this Court create a variation on res ipsa loquitur, such that posting a copy of an image without copyright management information speaks for itself - that the posting party must have removed it. The Court is unwilling to speculate and concludes that, if anything, only an inference that the image lacked the copyright management information is appropriate." Id. at *14-15.
The Court denied the Plaintiff's summary judgment claim for the removal of copyright information under 28 U.S.C. § 1202, but it did however grant the Plaintiff's motion for summary judgment on its copyright infringement claim.