Court denies motion to dismiss copyright claim over use of Willie Nelson photo on Facebook

By Charmaine Little | Dec 5, 2018

SAN FRANCISCO — A publication’s motion to dismiss claims it violated the Copyright Act and the Digital Millennium Copyright Act was granted in part and denied in part by the U.S. District Court for the Northern District of California on Nov. 30.

U.S. Magistrate Judge Thomas S. Hixson ruled on the case.

Photographer Larry G. Philpot sued Alternet Media, Inc. for posting one of his copyrighted pictures of Willie Nelson on Facebook with the quote, “Rednecks, hippies, misfits—we’re all the same. Gay or straight? So what? It doesn’t matter to me. We have to be considered about other people, regardless. I don’t like seeing anybody treated unfairly. It sticks in my craw. I hold on to the values from my childhood.”

Alternet claimed that Philpot’s copyright infringement argument was blocked by the fair use doctrine, which says that “fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means…for purposes such as criticism, comment, news reporting, teaching…scholarship, or research, is not an infringement of copyright,” according to the lawsuit.

The court said it was necessary to determine whether the purpose was to simply identify Nelson or to make it a political poster. Considering the nature of the copyrighted work, the portion of the work used in relation to the work as a whole, and how the use of the work had impacted its value, the court denied Alternet’s motion to dismiss the copyright infringement claim based on a fair-use argument.

But the court granted the motion to dimiss for claims under the Digital Millennium Copyright Act, saying Philpot had not proved Alternet's intentions when posting the photo.

Philpot said Alternet should have been fully aware that removing the copyright management information from the snapshot would inevitably lead to an infringement on Philpot’s rights, but the court said his claim was conclusory.

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