Photographer Sues Kawasaki for Unauthorized Use of Photograph

defendant-appellees cite yellen v. cooper as an example of courts 16, 2006. fisher gave latimer a check for $800.00 and in return latimer gave originality requirement, they must also prove that "the copying of copyrighted answer to latimer's complaint. they also never raised the issue of fair use in their after first publication of the work shall constitute prima facie evidence of the matter, that the alleged infringer actually copied plaintiff's copyrighted material. a court may determine that an affidavit is a sham when it contradicts affirmative defense to a claim of copyright infringement, "the alleged infringers should look like, were left to roaring toyz. inherent inconsistency between the affidavit and the two previous depositions, and a. factual background exceptions to this rule and the district court is free on remand to entertain a motion and does not affect any copyright protection in the preexisting material. 17 u.s.c. summary judgment to all defendants on the unfair competition claim and to creative expression of ryan hathaway, and as such entitled to copyright latimer's photographs are not infringing works and qualify for copyright a florida corporation, et al., kawasaki asserts that latimer did not expressly communicate to kawasaki copyrighted work "for purposes such as criticism, comment, news reporting, the same thing." appeal, latimer argues that hachette waived the affirmative defense of fair use by photographing the motorcycles. during one of his visits to roaring toyz, latimer attempt to limit the scope until after he had delivered the copyrighted work to the derivative work within the meaning of the copyright act"); ty, inc. v. publ'ns int'l dictionary 1080 (9th ed. 2009). copyright protection, they did not commit copyright infringement because latimer white background, which was consistent with the industry practice he had noted in a warning adequate to put kawasaki on notice that certain uses of latimer's photos photographed three yamaha r1s and three suzuki hayabusas, as requested by the two works are substantially similar"). while it is clear that hathaway granted kawasaki and roaring toyz an one such publication in attendance was cycle world magazine , which is owned3 1. is fair use an affirmative defense? section 107 of the copyright act specifically permits the unauthorized use of filed in october 2006, latimer brought this action against defendants alleging approximately thirty members of the media, including a representative of cycle in his affidavit, latimer states: "i did not know that del cioppo or fisher todd latimer, defendant-appellees claim that, even if latimer's photographs enjoy argument, reverse the district court's grant of summary judgment to kawasaki as a matter of law, that hachette's use of the photographs was lawful." on competing policy decisions. however, neither yellen nor the jackson line of cases 21 on kawasaki giving him credit as the photographer. latimer claims that he response to kawasaki's request for high quality promotional images. roaring burden of pleading its own affirmative defenses. here, hachette has not offered 4 face of the complaint, the defense was not unanticipated in that case. id. at 1476. presentation at the press event in las vegas, nevada. latimer informed del "substantial similarity" of copyrightable expression. see nichols v. universal use his photographs. the question remaining is whether kawasaki exceeded the a judicial proceeding, "certificate of a registration made before or within five years granted kawasaki and roaring toyz an implied license to copy and distribute his inc., 499 u.s. 340, 361, 111 s. ct. 1282, 1296 (1991). "to `satisfy feist 's first photographs at kawasaki's request, delivered the photographs to kawasaki, and defendant-appellees only reference to fair use stated: "defendants respectfully regarding how the customization should be done, as well as what the final product zx-14 motorcycles. license may be proven through parol evidence). in asset marketing systems, inc. courts have historically viewed summary judgment as inappropriate in the disk, including copies of latimer's zx-14 photographs, with their respective previous deposition testimony and the party submitting the affidavit does not give that the fair use of a copyrighted work "is not an infringement of copyright." 17 todd latimer is a professional photographer who specializes in motorcycle roaring toyz, inc., kawasaki did not exceed the scope of the implied license. cioppo a selection of edited images of the customized zx-14 motorcycles. each use, it must consider the four factors of � 107 in determining whether hachette's publication of when the photo session concluded on the morning of february 24, 2006, any valid explanation for the contradiction. see van t. junkins & assocs., inc. v. photographs were initially published. thus, latimer benefits from a rebuttable defense requiring a case-by-case analysis." 471 u.s. at 561, 105 s. ct. at 2231; implied license. hathaway knew that kawasaki and roaring toyz intended to 2 case for immediate appeal under rule 54(b) and this appeal followed.6 reconsideration the district court entered summary judgment in favor of hachette, must be proven: (1) ownership of a valid copyright, and (2) copying of constituent flashed upon a screen." the affidavit contradicts both latimer's april 4 deposition own interest in protecting its first amendment right to fair use of copyrighted u.s. indus., inc., 736 f.2d 656 (11th cir. 1984). however, "[t]his rule is applied del cippo. latimer also claims that he made it clear to both fisher and del cippo motion for summary judgment. in fact, fair use was first raised by the district court implied license and hachette summary judgment based upon fair use." latimer however, latimer claims that he used the term "flyer" to refer to the placard to be graphics 2, a new jersey corporation that had recently relocated to florida, to latimer was required to expressly communicate the restriction directly to pleaded for "usable, reproducible photos" of the motorcycles. on february 23, use of the word "flyer," latimer testified that it was "[j]ust a poor choice of words . 11 affirmed in part, reversed in part, and remanded. genuine issue as to any material fact and that the moving party is entitled to a authorship has granted a license to create a derivative work is a threshold question iii. discussion derivative works); ets-hokin v. skyy spirits, inc., 225 f.3d 1068 (9th cir. 2000) on june 2, 2006, the register of copyrights granted latimer's application elements of the work that are original." feist publ'ns, inc. v. rural tel. serv. co., material was so extensive that it rendered the offending and copyrighted works studying other advertising photographs. the email, latimer stated: "i know that kawasaki will list you guys on the flyer for artistic style. latimer's photographs have appeared on the covers of motorcycle of the images latimer delivered to del cioppo contained a metadata file that4 is a "constitutional requirement"). if a plaintiff survives a challenge to the 4. did kawasaki exceed the scope of its license? photographs to kawasaki. latimer testified that he did so by expressing the kawasaki and hachette, pursuant to 17 u.s.c. � 501, alleging that they infringed asked latimer to create those photographs. latimer thus created the photos at article not subject to copyright protection, does not qualify as a preexisting work customization potential and availability of aftermarket parts. implied license, the question remains whether this implied license extends to to use the photographs in its press release materials, and (4) hachette's subsequent seeks to balance first amendment concerns with the protections otherwise within the meaning of the copyright act). at least one influential district court7 customization process for inclusion with a magazine article. as a result of the "judge birch of this court has repeatedly expressed this court's view that `fair "constitutional significance as a guarantor to access and use for first amendment must be resolved by a jury, we reverse the district court's grant of summary kawasaki requested that roaring toyz customize the zx-14 motorcycles, and 518 ("we will assume without deciding that each of schrock's photos qualifies as a roaring toyz in turn asked hathaway to apply custom paint and graphics to the complied with applicable statutory formalities.'" bateman v. mnemonics, inc., 79 implied license at least encompassed uses that promoted the zx-14 motorcycle. "when an action presents more than one claim for relief -- whether as a claim,6 as "a privilege in others than the owner of the copyright to use the copyrighted to satisfy feist's second prong, a plaintiff must establish, as a factual intended that kawasaki use the photographs on a placard and in a screen kawasaki, a prominent motorcycle manufacturer, planned to unveil its admissions on file, together with the affidavits, if any, show that there is no at 2230; pacific and southern co., inc. v. duncan, 744 f.2d 1490, 1494 (11th cir. 1984). if fact cippo insist that they told latimer the photographs would be used by kawasaki for qualify for copyright protection. the district court granted summary judgment to granted them a non-exclusive implied license to use his work. the district court scene. friend and roaring toyz employee, bruce casner. roaring toyz is a florida infringement rather than an affirmative defense that admits the allegations of the material. thus, the district court erred in raising the fair use defense sua sponte. the scope of what hathaway intended when he granted the implied license. thus, made without ryan hathaway's authorization. as roaring toyz worked to complete the zx-14 project in time for daytona 49 f.3d 807, 813 (1st cir. 1995), aff'd by, 516 u.s. 233, 116 s. ct. 804 (1996)). in 8 3. did latimer grant kawasaki an implied license? to customize two zx-14 motorcycles. kawasaki's director of product planning, assignment was to provide photographs of the motorcycles at various stages of the material in a reasonable manner without his consent." harper & row publishers, inc. ("hachette"), roaring toyz, inc. ("roaring toyz"), and robert fisher for latimer has the burden of establishing an implied license. an implied license commits copyright infringement. see id. courts focus on toyz provided latimer with access to the motorcycles and assisted his efforts in hathaway's conduct satisfies all three prongs of the implied license test. f.3d 1532, 1541 (11th cir. 1996) (quoting lotus dev. corp. v. borland int'l, inc., 22 that latimer's work "lacks sufficient originality, and is incapable of constituting exceeded the scope of the license. furthermore, kawasaki's distribution of efficiency by permitting summary dismissal before service on the defendant where 35 like hathaway, latimer never executed a document granting an exclusive magazine. latimer seeks a permanent injunction preventing defendants from media. hathaway also knew that both kawasaki and roaring toyz sought as much motorcycles were the subject matter and primary focus of latimer's photographs. when he typed "flyer." consequently, the district court's reasoning in this regard presentation or whatever is flashed up on a screen." thus, latimer granted cycle world while in a barber shop. believing that confronting defendants about later that day, del cioppo informed latimer that kawasaki was impressed suntrust bank v. houghton mifflin co., judge birch commented that "fair use is has traditionally been frowned upon in copyright litigation, see id. at 474. fact, see arnstein v. porter, 154 f.2d 464, 468 (2d cir. 1946), summary judgment by the zx-14 photographs and wanted to include five of his images in its reiterate the limitations on the license when he emailed the photographs. in contrast, the goal of the fair use defense is to "strike a balance between (11th cir. 2001). thus, a close reading of judge birch's comments reveal that he issues. on reconsideration, the district court again granted summary judgment to granted kawasaki permission to use the photographs for a specific purpose-a failure to plead an affirmative defense generally results in a waiver of that derivative works based upon protectable preexisting works created and owned by hill v. braxton, 277 f.3d 701, 706 (4th cir. 2002) (holding that a district court has roaring toyz would send the photographs to kawasaki to create the placard. _________________________ limitations period implicates values beyond the interests of the parties"). restrict the scope of a license when they deliver the copyright work. 542 f.3d 748, underlying the jackson line of cases is that habeas petitions, in particular, raise for the middle district of florida photographs that can be characterized as "slavish copies," courts have recognized defense. see jackson, 678 f.2d at 1012; fed. r. civ. p. 8(c). however, there are cool. thanks, todd." three prongs of the implied license test. kawasaki requested that roaring toyz roaring toyz president and founder, robert fisher. again holding that its publication of latimer's photographs was fair use. on granted his motion for reconsideration giving him the opportunity to brief the . . because it was a display, flyer, poster, placard. i think they all run [sic] about permission. 988, 992 (d.c. cir. 2003). 9 properly granted when "the pleadings, depositions, answers to interrogatories, and to obtain photographs of the customized motorcycles. when del cippo responded article (as an automobile) for repair and replacement as distinguished from the use of such parts see 17 u.s.c. � 204(a). however, non-exclusive licenses are exempt from this work in which such material has been used unlawfully." 17 u.s.c. � 103(a). it is 15 inquiry. see oravec v. sunny isles luxury ventures, l.c., 527 f.3d 1218, 1223 17 u.s.c. � 107. thus, defendant-appellees have not infringed latimer's were in direct communication with one another and the copyright holder did not superfluous. 828 f.2d at 1476. roaring toyz customized the mechanical features of motorcycles, leaving bike week, kawasaki was planning the zx-14 world press introduction, to be latimer's use of hathaway's artwork. latimer argues that his use of hathaway's questions are in dispute, these must be resolved by the jury. sua sponte in its first order for summary judgment. even after the district court license exists, and this inquiry also reveals the scope of that license. see that latimer granted kawasaki an implied license to use his photographs but find the first amendment and the copyright act by permitting free communication of scope of that license by including latimer's photographs in its press kit. in the infringement and/or disgorgement of defendants' profits not taken into account as the press event approached, kawasaki realized that in order to effectively counterclaim, crossclaim, or third-party claim -- or when multiple parties are involved, the court eleventh circuit 32 is to view `fair use' as an affirmative defense, this writer, speaking only for latimer asked to be paid $800.00 for the photographs taken on february 14 and lighting, appropriate camera equipment and lens, camera settings and use of the the defendant to establish that "the work in which copyright is claimed is when he sent the photos that kawasaki "might" use them. given that there is an the press release in las vegas. latimer denies being told this by either fisher or kawasaki relies on asset marketing systems, as support for its argument that cir. 1982); fed. r. civ. p. 8(c) ("in responding to a pleading, a party must the power to raise the limitations defense sua sponte because "[t]he one-year copyright registration granted june 2006, less than four months after the fisher. we review the district court's grant of summary judgment de novo, inc., 510 u.s. 569, 590, 114 s. ct. 1164, 1177 (1994), and, as we are bound by thus, when latimer delivered the photographs to del cioppo, he constructively organize, manage, and facilitate the use and understanding of primary data. black's law 2006, fisher contacted latimer and explained kawasaki's urgent request for mnemonics, inc., judge birch commented that "[a]lthough the traditional approach assignment, latimer was frequently present at the roaring toyz shop implied licenses may be limited and a defendant who exceeds the scope of 25 subject-matter. id.; see also rogers v. koons, 960 f.2d 301, 307 (2nd cir. 1992) should the district court ultimately rule that hachette has not waived the defense of fair8 16 an infringement at all. 31 hachette filipacchi media u.s., inc., the photographs in digital format on compact disks could be found to have 18 any restrictions on the use of the photographs. however, latimer contends that all this issue has not been properly presented in the district court. as previously d. c. docket no. 06-01921-cv-t-30-eaj which preclude granting summary judgment to roaring toyz and robert fisher on restrict the scope of the license when he delivered the work. thus, hathaway's 23 latimer's photographs are "unauthorized derivative works based upon protectable copies of his protected work or destroy the protected work under a writ of challenge latimer's copyright by arguing that the photographs are "unauthorized ct. 216 (1931). because substantial similarity is an extremely close question of derivative work qualifies as such. thus, we need not resolve the derivative works obvious from the face of the complaint. id. at 1474-75. the court reasoned that type of slide show or powerpoint presentation where the photographs would be all justifiable inferences are to be drawn in his favor. neither we nor the district 14s. during january and february 2006, hathaway worked in his one-man shop ct. 2548, 2552 (1986). affirm the district court's judgment if alternative grounds exist for finding that trend developing in the marketplace for customized motorcycles. the zx-14's opportunity to oppose the motion. the district court disagreed with latimer's distribution." webster's third new international dictionary 870 (3d ed. 1966). 12 ________________________ in computing actual damages. no precedential support for their assertion that photographs of preexisting works copyright if the use made of the photographs is a fair use under 17 u.s.c. � 107. forwarded the photographs to kawasaki until fisher or del cioppo told me that the subject matter of federal copyright includes derivative works, but the yellen, the tenth circuit affirmed the district court's sua sponte grant of summary teaching (including multiple copies for classroom use), scholarship, or research." suicide," latimer delayed taking action until august 2006 when he contacted photograph's metadata, latimer claims that he believed it was unnecessary to cycle world is the largest motorcycle enthusiast magazine with a circulation of over3 generally lack the ability to raise an affirmative defense sua sponte." hutcherson copyrightable subject matter." instead, on this appeal, defendant-appellees that "[t]he sine qua non of copyright is originality," as well as emphasizing that it the background and flooring. however, latimer made all decisions regarding commonly referred to as an affirmative defense, see campbell v. acuff-rose music, was approached by fisher to photograph several other customized motorcycles for court are to undertake credibility determinations or weigh the evidence. although substantial expertise in copyright law as a result of the large number of copyright cases litigated summary judgment. cf. herzog v. castle rock entm't, 193 f.3d 1241, 1247 (11th that the photographs could not be leaked before the publication of his article in selected its press invitees with a focus toward motorcycle enthusiast publications. would constitute copyright infringement. appeal from the united states district court latimer's deposition testimony raises genuine issues of material fact plaintiff's work, or because no reasonable jury, properly instructed, could find that meanwhile, latimer was assigned by two wheel tuner magazine to follow may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only in january 2006, kawasaki delivered two pre-production zx-14 motorcycles to result, kawasaki's marketing plan for the zx-14 focused on the bike's affirmatively state any avoidance or affirmative defense"). furthermore, "[c]ourts hayabusa motorcycles was never discussed and that latimer's payment request of his communications with kawasaki went through roaring toyz and that he a. copyright infringement subsequent publication of the photographs was fair use. before marcus, fay and anderson, circuit judges. fay, circuit judge: they were permitted to use the photographs and, as unauthorized derivative works, substantially similar." lotus, 49 f.3d at 813. noted, failure to plead an affirmative defense generally results in a waiver of that professional photographer and multiple defendants regarding the distribution and appellees allege that latimer's photographs infringe on hathaway's original work, by defendant-appellee hachette. defendant-appellees distributed and published digital copies, which were that evening to meet kawasaki's february 24, 2006 deadline as long as he was need not resolve the derivative work question if the photographs were made with a publisher at cycle world about publishing latimer's photographs of the preexisting works created and owned by ryan hathaway," and as such do not in the united states court of appeals issues. prior to del cioppo's involvement, fisher managed roaring toyz u.s. court of appeals 1. did hathaway grant an implied license? cir. 1999) (recognizing that summary judgment is appropriate where "the for the foregoing reasons, we affirm the district court's denial of summary indistinguishable from latimer's original photographs. as such, substantial metadata attached. kawasaki and informed them that his photographs were being used without his relying exclusively on shl imaging, the district court concluded that 30 latimer stated that the court's order "goes beyond the matters briefed by the no. 08-16665 is insufficient to sustain summary judgment on this issue. we may, nevertheless, have the burden of establishing an implied license." atkins v. fischer, 331 f.3d photographer. latimer is known for portraying motorcycles in a unique and 14 authorization by publishing the photographs in the june 2006 issue of cycle world bradford exchange, 698 f.2d 300, 303 (7th cir. 1983) (the scope of an implied ryan hathaway, an independent painter, to apply custom paint and graphics to the complaint but provides another reason why the plaintiff may not recover. in late 2005, fisher retained john del cioppo, owner and operator of pub. educ. for bibb county, 495 f.3d 1306, 1316 (11th cir. 2007). as such, photography. latimer's passion for motorcycles and background in glamour and kawasaki and hachette on the copyright infringement claims. the district court with unsatisfactory images taken by the roaring toyz staff, freeman mccue work was merely incidental but nevertheless fell within the scope of hathaway's affirmative defense. moreover, the supreme court explained in harper & row, license." media. the customized motorcycles were not scheduled to be completed until the district court also held that there are genuine issues of material fact, or a computer generated presentation flashed on the screen." the district court objective evidence revealing the intent of the parties to determine if an implied held in late february 2006 in las vegas, nevada. the zx-14 world press judgment based on an unpleaded affirmative defense, where the defense was the policy underlying rule 8(c) was to afford the plaintiff adequate notice of copyright in such works "extends only to the material contributed by the author," delivered the artwork to kawasaki. hathaway knew the customized motorcycles promote the customized motorcycles as widely as possible and did not expressly 8." id. at 1542; see also feist, 499 u.s. at 345-46, 111 s. ct. at 1287-88 (noting versus were included in the press kits distributed by kawasaki in las vegas. the defendant-appellees rely on the language of the statute itself for the proposition could distribute his photographs to the media in a printed flyer, the distribution of relying primarily on yellen, defendant-appellees argue that courts have wilchombe v. teevee toons, inc., 555 f.3d 949, 956 (11th cir. 2009); gracen v. to kawasaki's request to use the photographs in a "slide show or powerpoint question if the photographs were made with hathaway's authorization. order. defendant-appellees argue that this affidavit should be dismissed as a sham hathaway delivered the painted bodywork to roaring toyz, he constructively that statement entirely on the parties' concession that the photographs were his copyright in the zx-14 photographs. latimer produced a certificate of transform, or adapt an underlying work, then all original works are vulnerable to kawasaki. 542 f.3d at 748. however, in asset marketing systems, the parties defense. see jackson v. seaboard coast line r. co., 678 f.2d 992, 1012 (11th latimer worked throughout the night of february 23-24 photographing the taken at roaring toyz facility since there was only one kick stand for the two b. derivative works that this email "confirms that [latimer] did not limit kawasaki's use to `placards' two wheel tuner. defendants, 7 media display at bike week. thus, the question here is whether latimer delivered courts must "find some inherent inconsistency between an affidavit and a photographs of the customized zx-14s. latimer agreed to conduct a photo shoot used his protected work without permission or authorization. defendants maintain photographs for use on the placard. later that same morning, latimer emailed del 28 even if the photographs are derivative works, they must also be 26 way other than on a placard. in his september 25 deposition, latimer reiterated booth at the west palm beach motorcycle show. casner arranged for models to license, the district court relied on an email sent by latimer to roaring toyz. in photographs of a preexisting work are derivative works. cf. schrock, 586 f.3d at depicts that sculpture; it does not recast, transform, or adapt" the authorship found copyright infringement context because of the inherently subjective nature of the customized zx-14s, as requested by fisher and del cippo. the photographs were advanced by the defendant that the portion of the work actually taken does not photographs are disputed by the parties. however, latimer's conduct satisfies all see id. "factual proof of copying, however, is only an element in satisfying the in the preexisting work). issues of federalism and judicial efficiency-interests that "eclipse the immediate are derivative works. 13 was expressing his personal views, not the views of this court, but nevertheless 27 d. fair use that "[t]he drafters resisted pressures from special interest groups to create reasonable to infer that hathaway intended that his artwork be photographed and obviously understood the term "flyer" to mean "a handbill or circular for mass work without authorization by including the photographs in its press kits that were john ley for the eleventh circuit recognized that binding supreme court authority requires us to treat fair use as an all defendants on latimer's unfair competition claim holding that it is preempted 330,000. www.roaringtoyz.com and www.zx-14parts.com.5 appear in the booth and latimer conducted several photo shoots during the show to sparingly because of the harsh effect it may have on a party's case." allen v. bd. of suzuki hayabusa motorcycles. fisher claims that payment for the r1 and vacated that order to allow the parties to brief, inter alia, the fair use issue, motorcycles, useful articles not subject to copyright protection. the fact that motorcycles. hathaway thus created the original artwork at kawasaki's request. in december 2007, defendants moved for summary judgment arguing that infringing his copyright, an order directing defendants to tender all infringing work and approached him to photograph aftermarket parts for a roaring toyz (april 2, 2010) judgment to kawasaki and hachette on their unauthorized derivative works on summary judgment, latimer's evidence must be taken at face value, and however, in cases such as this, where substantial similarity is undisputed by the adapt those elements." shl imaging, inc. v. artisan house, inc., 117 f. supp. 2d use on the roaring toyz website. on february 14 and 16, 2006, latimer presentation. however, in an email to del cioppo on february 24, 2006, latimer testimony that he knew and intended that roaring toyz would forward his it may be a stretch, a reasonable person could believe that latimer meant "placard" communications with roaring toyz and the copyright notice contained in the kawasaki motors corp., u.s.a. ("kawasaki"), hachette filipacchi media u.s., the united states district court for the southern district of new york has developed7 del cioppo posted latimer's photographs of the customized zx-14 are derivative works from the copyrighted beanie babies themselves" but basing v. lauderdale county, tenn., 326 f.3d 747, 757 (6th cir. 2003). exceptions to this supreme court precedent, we will apply it as such." 268 f.3d 1257, 1260 n.3 info to them so that they might attach it on the back of the flyer, that would be for dept. of corrs., 292 f. 3d 1347, 1349 (11th cir. 2002) (holding that "the hathaway made the final decisions as to the paint design and colors for the zx- cioppo that kawasaki could use his images of the zx-14 motorcycles conditioned 3 unanticipated defenses and, because the affirmative defense was obvious from the marketing efforts with assistance from his employees. for the hayabusa, which increased it's attractiveness to potential buyers. as a customization projects. in addition, many aftermarket parts were readily available during the zx-14 press event, kawasaki distributed press kits to understood kawasaki's request to be limited to using the photographs in a screen kawasaki. latimer stated in his april 4 deposition that he made it clear to roaring florida common law. latimer specifically alleges that (1) roaring toyz used his if that limitation is expressly conveyed when the work is delivered. daytona bike week in early march, and as such would not be available for the may be dismissed as a sham. 556, 105 s. ct. at 2228; see also suntrust bank, 268 f.3d at 1260, n.3 (fair use has latimer's copyright infringement claim. that ruling is not before us. affidavit submitted after the district court vacated its first summary judgment 301, 305 (s.d.n.y., 2000). furthermore, "protection for a work employing facts while still protecting an author's expression." harper & row, 471 u.s. at "[w]hile there may be evidence of copying, not all copying is legally 2. did the district court err by raising fair use sua sponte? beside the zx-14 motorcycles at daytona bike week. however, fisher and del publication of photographs of a customized motorcycle. todd latimer sued five or six years, during which he also produced work for other companies and after arriving home that morning, latimer began digitally editing the zx-14 toyz that the photos were not to be "leaked," i.e. published or distributed in any merchandise and customization services. del cioppo also testified that he spoke to the photographs was fair use. see 17 u.s.c. � 107; harper & row, 471 u.s. at 560, 105 s. ct. ii. standard of review [publish] kawasaki and hachette repeating its prior holdings. the district court certified the based company that specializes in customizing sport motorcycles and 5 media exposure as possible for the zx-14 customization project. thus, it is v. ganon, the ninth circuit held that a copyright owner must express the intent to diminish his copyright protection. see 17 u.s.c. � 113(a). thus, latimer's (sidestepping the derivative works question by holding that a vodka bottle, a useful as original components." webster's third new international dictionary 38 (3d ed. 1966). hathaway knew the customized motorcycles, which sported his custom paint work, under certificate of registration no. vau700-638. five of these protected works curve int'l, inc., 586 f.3d 513, 519 (7th cir. 2009). except for a limited class of we state the facts in the light most favorable to the non-moving party, patrick kelly, discovered roaring toyz online and was impressed by their work. preexisting material in which copyright subsists does not extend to any part of the limitations to roaring toyz, who acted as an intermediary between latimer and april 2, 2010 see also h.r. rep. no. 90-83, at 37 (1967). thus, the fair use of copyrighted work fisher a compact disc containing edited images of the three yamaha r1 and three appellees that this apparent incongruity "tears a gaping hole in copyright protection "federal courts have historically applied a generous standard of originality photographs to kawasaki, and his september 27 deposition testimony that he knew himself, is of the opinion that it is better viewed as a right granted by the copyright 33 for copyright registration of his photographs of the customized zx-14 motorcycles, 19 (11th cir. 2009). under fed. r. civ. p. 56(c), a motion for summary judgment is held that (1) latimer's unfair competition claim is preempted by the copyright photographs were published in conjunction with a feature article written by don kawasaki's public relations firm, freeman & mccue, contacted del cippo are at issue in this appeal. latimer claims he learned that his photographs were misappropriation by the photographer's lens. however, defendant-appellees offer opinion. kawasaki was impressed with my photographs and wanted to use them in some the photographs are not derivative works but that latimer granted kawasaki an community. while preparing for the introduction of the zx-14, kawasaki noted a the fair use doctrine is a statutory exception to copyright infringement, which c. implied license purposes"). that a constitutional right is involved does not mitigate a defendant's motorcycles on two roaring toyz websites to promote and advertise the sale of its5 dismiss claims based on affirmative defenses that promote judicial efficiency, even to garner positive media exposure for the motorcycle's release. kawasaki carefully plaintiff-appellant, delivered them to kawasaki. in addition, latimer also testified that he consented displayed alongside the production model zx-14 during bike week. decisions hachette based on fair use, and remand for further proceedings consistent with this the copyright act requires a writing for all exclusive transfers of copyright. roaring toyz customization of the zx-14 motorcycles. specifically, latimer's latimer insists that he limited the scope of the license before delivering the the non-moving party. see wilchombe v. teevee toons, inc., 555 f.3d 949, 956 a foreign corporation, inc. v. nation enters., 471 u.s. 539, 549, 105 s. ct. 2218, 2224-25 (1985). 10 24 being used without his permission when he read a copy of the june 2006 issue of email. customized zx-14 motorcycles. according to del cioppo, he "called in some was to exhibit photographs of the customized motorcycles. substantial element of a preexisting work of authorship and recast, transform, or implicates competing policy concerns. rather, those cases give courts leeway to 34 designing the artwork, selecting the paint colors, and painting the bodywork for the by running extension cords and power cables for lights and cameras and setting up to promote and advertise the sale of merchandise, (2) kawasaki used his protected judgment to kawasaki. photographs do not qualify for copyright protection if they are derivative works a non-exclusive license, either orally or through conduct. because defendant- favors and . . . talked to one of the publishers . . . to give him an exclusive, the sure. please forward my credit info to them so that they might attach it to the back based on implied license, reverse the district court's grant of summary judgment to world magazine. the press kits contained a selection of digital images on compact latimer's photographs were such a use. roaring toyz asked latimer to this appeal arises out of an intellectual property dispute between a would be publicly displayed at daytona bike week and photographed by the defendant-appellees misrepresent judge birch's comments. in bateman v. reaching the conclusion that kawasaki has not exceeded the scope of the implied b. procedural background raised as an affirmative defense to copyright infringement because fair use is not failing to raise it in its answer. defendant-appellees claim that fair use need not be clerk considering affirmative defenses sua sponte. 828 f.2d 1471 (10th cir. 1987). in deferring the question of whether hachette has waived the fair use defense. we are subsequently, cycle world published three of the five zx-14 photographs that 29 in the instant case, latimer brought claims against defendant-appellees, highly anticipated zx-14 sport motorcycle at daytona bike week in march 2006. rule include timeliness objections to habeas petitions, even where the government actionable." bateman v. mnemonics, inc., 79 f.3d 1532, 1542 (11th cir. 1996). presumptive categories of fair use, but structured the provision as an affirmative argued that the district court's power to grant summary judgment sua sponte is metadata, commonly described as "data about data," is defined as "[s]econdary data that4 fisher told him the zx-14 photographs would be used on a placard to be displayed act of 1976." 79 f.3d 1532, 1542 n.22 (11th cir. 1996). several years later in protection. the fact that hathaway's artwork appears on useful articles does not ryan hathaway, and for which uses latimer has not requested nor received a act, (2) the photographs are not unauthorized derivative works and thus they1 "latimer has not `recast, transform[ed], or adopt[ed]' [sic] hathaway's artwork," that must be answered before turning to the more difficult question of whether the ________________________ catalog. several months later, casner hired latimer to help with the roaring toyz has failed to plead timeliness as an affirmative defense. see, e.g., jackson v. sec'y prong, a plaintiff must prove that the work . . . is original and that the plaintiff hathaway's authorization. i. background implied license to use the photographs in its press release materials, and hachette's presentation. original work. distributed to the media, and (3) hachette used his protected work without zx-14 motorcycles. hathaway had provided paint services to roaring toyz for publication of the photographs was fair use. we affirm in part and reverse in part. ltd., 292 f.3d 512, 519 (7th cir. 2002) (stating that "photographs of beanie babies ________________________ 410(c). once the plaintiff produces a certificate of registration, the burden shifts to 6 protected work without authorization by displaying the photographs on its websites protection. suggest that this court need not go as far as fair use analysis in order to determine, implement its marketing plan, it needed to exhibit the customized zx-14s to the kawasaki and hachette on latimer's copyright infringement claims holding that wrote: "kawasaki will list you guys on the flyer for sure. please forward my credit 20 writing requirement, see 17 u.s.c. � 101, and "may be granted orally, or may even which satisfies the originality requirement for copyright protection, does not recast, further weakening defendant-appellees argument is the fact that the zx-14 defendant. id. at 757. latimer has failed to provide an explanation for the contradiction, the affidavit copyright infringement and unfair competition, alleging that defendants copied and in the instant case, actual copying of latimer's photographs is undisputed. the copyright in a derivative work is defeated only when the underlying work has similarity between two works concerns only non-copyrightable elements of the parties and sua sponte grants kawasaki summary judgment on the theory of containing his contact information and "all rights reserved." based on his in late 2004 or early 2005, latimer was introduced to roaring toyz by his because it contradicts prior sworn testimony. provided the viewer with technical information and copyright notice for the kawasaki motors corp, usa, be implied from conduct," jarrod maxwell, inc. v. veeck, 110 f.3d 749, 752 (11th 756 (9th cir. 2008). thus, an implied license will be limited to a specific use only 2. did latimer exceed the scope of the license? such, news of its release generated a lot of excitement within the motorcycle similarity is not at issue. defendant-appellees do not repeat their previous claims not ruling as a matter of law that hachette has waived the fair use defense because hathaway's artwork appears in the photographs is merely incidental. however, we original artwork. thus, the photographs are unauthorized unless hathaway granted iv. conclusion where the defendants fail to raise those claims themselves. the rationale provide justification for allowing courts to raise sua sponte every issue that motorcycles. due to the short deadline, roaring toyz employees assisted latimer satisfy the constitutional requirement of originality as set forth in article i, � 8, cl. hathaway never executed a document granting an exclusive license in his is an affirmative defense and should be pleaded as such. a foreign corporation, photograph the zx-14 motorcycles, which sported hathaway's artwork, in license in his work and latimer's oral representations regarding the use of his see shl imaging, 117 f. supp. 2d at 305 (a photograph of a sculpture "merely of implied license or fair use were to be considered on summary judgment. any justification for its failure to plead fair use. unlike the cases considered above, courts considering the fair use defense have no interest that eclipses the party's main competition, the suzuki hayabusa, was particularly sought after for distributed by kawasaki, roaring toyz, and the media. at a minimum, hathaway by the copyright act. the district court also granted summary judgment to any other variant involved."). yet, courts have been reluctant to find that another person's request; (2) delivers the work to that person; and (3) intends that concerns of the parties." hill, 277 f.3d at 705. similarly, yellen promotes judicial in an effort to further their marketing plan, kawasaki engaged roaring toyz ("elements of originality in a photograph may include posing the subjects, lighting, photograph. del cioppo immediately forwarded the images to kawasaki via undisputed that the artwork on the customized zx-14 motorcycles is the original, individuals. fisher and hathaway discussed graphic styles and color schemes but the unauthorized use of his photographs would be tantamount to "professional validity of the copyright and of the facts stated in the certificate." 17 u.s.c. � of the flyer, that would be cool." the district court asserts, without explanation, kawasaki's request. latimer's deposition testimony indicates that he knew second prong of feist." id. "[t]he plaintiff must also respond to any proof it is clear from the face of the complaint that waiting for the answer will be assertion that he did not have sufficient notice of the issues but nevertheless been misappropriated. whether the copyright owner of an original work of were to be used by kawasaki to promote their new zx-14 motorcycle. thus, when that runs counter to every other section of the copyright act's clear intent to presumption that his copyright is valid. defendant-appellees assert that fair use is merely a denial of copyright this point, claiming that he told fisher and del cioppo, "these can never be in judgment as a matter of law." celotex corp. v. catrett, 477 u.s. 317, 322, 106 s. destruction pursuant to 17 u.s.c. � 503, and actual damages suffered as a result of has held that photographs of preexisting works are not always derivative works. defendants-appellees. pertained to that night's photo session. unprotectable (for lack of originality)." bateman, 79 f.3d at 1541. introduction was an important event for kawasaki and was carefully orchestrated angle, selection of film and camera, evoking the desired expression, and almost the photographs fail to qualify for copyright protection. the district court granted canet that appeared in the june 2006 issue of cycle world. parties, non-infringement may be determined as a matter of law on a motion for enthusiast magazines such as two wheel tuner, super street bike, and cycle it is clear from the record that latimer gave kawasaki an implied license to in that district each year. if the court expressly determines that there is no just reason for delay." fed. r. civ. p. 54(b). to amend by hachette to assert the affirmative defense of fair use.8 this ruling is not challenged on appeal.1 federal copyright infringement under 17 u.s.c. � 501 and unfair competition under thus the photographs were not derivative works. we tend to agree with defendant- district court possessed the discretion to raise sua sponte the timeliness issue"); � 103(b). under 17 u.s.c. � 101, "a derivative work must incorporate a latimer moved for reconsideration arguing that he had no notice the issues infringe latimer's copyright. finding these genuine issues of material facts, that the person copy and distribute the work. see id. because an implied license is an displayed at bike week, and not to kawasaki's press kit. when asked about the roaring toyz. the customized motorcycles were to be delivered to daytona and latimer contradicts some of his deposition testimony described above in an provide it with photographs of the customized zx-14s, and roaring toyz in turn qualify for copyright protection, (3) latimer granted kawasaki an implied license unauthorized for defendant-appellee's argument to succeed. as noted previously, opportunity to come in and photograph the zx-14s at roaring toyz. he declined." considering all the evidence and factual inferences in the light most favorable to aftermarket is defined as "the market for parts and accessories for a manufactured2 generate interest in the roaring toyz display. during the show latimer met regarding the scope of kawasaki's license. even if latimer agreed that kawasaki that kawasaki's use might have exceeded the scope of that license. pictures corp., 45 f.2d 119, 121 (2d cir. 1930), cert. denied, 282 u.s. 902, 51 s. however, defendant-appellees did not assert a fair use defense in their the zx-14 promised to be the fastest production motorcycle ever built; and as discretion to consider certain defenses sua sponte where the applicable law reflects in evaluating photographic works for copyright protection." schrock v. learning latimer's photographs in digital format may have enabled hachette and others to producing the images. as such, latimer's use of hathaway's artwork fell within afforded authors by the copyright act. the supreme court has described fair use that most photographs contain at least some originality in their rendition of the plaintiff-appellant todd latimer, as required by the law controlling summary tempered by rule 56's requirement that the nonmoving party be given an manufacturing aftermarket parts for the same. casner was familiar with latimer's2 print." in addition, latimer testified that he marked the photographs with metadata paid for the photographs taken on february 14 and 16, 2006. latimer claims that manage roaring toyz websites and advise him on marketing and public relations use' is better viewed as an affirmative right rather than as a defense." however, latimer's photographs can best be described as being "based upon" the zx-14 deposition before disregarding the affidavit." id. u.s.c. � 107. to further support their argument, defendant-appellees claim that fashion photography helped him develop a reputation as a respected motorcycle judgment. paint and body work to outside contractors. as such, roaring toyz commissioned to establish a prima facie case of copyright infringement, "two elements agreed and granted summary judgment to kawasaki on this issue. we also agree 17 zx-14 world press introduction in las vegas. thus, kawasaki's only alternative protect original works of authorship against misappropriation." if a photograph, (11th cir. 2008). wrongful appropriation is typically shown by proving a kawasaki an implied license to use his photographs. latimer created the as such, we reverse the district court's grant of summary judgment to hachette, cir. 1997). an implied license is created when one party (1) creates a work at