United States District Court, D. Colorado
OPINION AND ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER comes before the Court on cross-motions for summary judgment: Mr. Boatman's Motion for Summary Judgment on All Claims (#26), the Defendant United States Racquetball Association's Response (#30, 31), and Mr. Boatman's Reply (#34); and the Defendant's Motion for Summary Judgment (#27, 28), Mr. Boatman's Response (#29), and the Defendant's Reply (#32, 33). Also pending before the Court is the Defendant's Motion for Leave to Restrict Document (#35), to which no response was filed.
Having reviewed the record and the submissions of the parties, the Court finds the undisputed facts relevant to the motion to be as follows.
Plaintiff Michael Boatman is a professional photographer and racquetball enthusiast. The Defendant United States Racquetball Association (USRA) is a non-profit corporation that promotes racquetball. The Defendant owns six major sporting events, including the U.S. Open Racquetball Championships. Although the Defendant owns the U.S. Open, it hires a third-party to manage the operation and running of the tournament. During the times relevant to this action, Ganim Enterprises was the operator of the U.S. Open.
Mr. Boatman attended the U.S. Open tournament from 1996 through 2010 and took several photographs during the events. Although Mr. Boatman contends that he never gave up copyright ownership to his photographs, he admits that, over the years, he gave permission to various individuals to use his photographs for certain purposes. Pertinent to this action are three license agreements in particular: (1) an oral agreement between Mr. Boatman and Doug Gamin, the owner of Ganim Enterprises, which was reduced to writing on July 17, 2009 ("the U.S. Open Agreement"); (2) a license granted by Mr. Boatman to the Defendant executed on October 29, 2010, ("the USAR License"), and (3) an agreement between Mr. Boatman and the Defendant executed on January 7, 2011, ("the Stock Photography License").
a. The U.S. Open Agreement
Since 1996, Mr. Boatman had a standing oral agreement with Doug Ganim, owner of Gamin Enterprises, that his photographs of the tournament could be used by Mr. Ganim for editorial purposes related to the U.S. Open. In exchange, Mr. Boatman received perks at the tournament, such as free entry and food and beverages. Pursuant to this agreement, Mr. Ganim would use Mr. Boatman's photographs on materials related to the U.S. Open. He would also provide photographs to the Defendant and authorize it to use the photographs for certain purposes.
In July 2009, through a series of email exchanges, Mr. Boatman and Mr. Gamin reduced to writing the oral "agreement [they] made so many years ago." An email from Mr. Boatman states, "US Open [P]hotography Agreement: Same as always images are for the uses of Ganim Enterprises, U.S. Open, and any editorial use per Doug Ganim without restrictions. Photographer, Mike Boatman maintains copyright exclusive ownership and has the right to sell or publish images per his discretion." Mr. Ganim responded that the terms outlined were acceptable.
b. The USAR License 
On October 29, 2010, Mr. Boatman wrote to USAR, supplying 58 of his photographs and implicitly licensing USAR to make certain uses of them, subject to the following terms: (i) "copyright notice must be clearly visible in each image published, " along with a specific attribution to Mr. Boatman; (ii) USAR was to make "editorial usage only" of the images; (iii) the use of the photographs with "commercial advertisement or [use] for ads of any type" was expressly prohibited; (iv) the images "may not be distributed, sold, or gifted to any third party"; and (v) the release "is for one-time publication in USA Racquetball Magazine."
c. The Stock Photography License
On January 7, 2011, Mr. Boatman and the Defendant entered into an agreement by which Mr. Boatman gave the Defendant permission, beginning on January 6, 2011 and continuing for three years, to make "unlimited print and electronic/web editorial use" of "action photos of racquetball from 2003 to 2009." The agreement provided for payment of a $1, 000 fee in exchange for this license. The license required that USAR include a copyright notice identifying him with each published use of the images, and provided that USAR was not permitted to assign or transfer its rights under the license.
Mr. Boatman alleges that beginning in 2009, the Defendant used his photographs in ways that were not authorized by any of the licenses he issued, and therefore the uses infringed upon his exclusive copyrights in the photos. Specifically, Mr. Boatman alleges that the Defendant used his photographs without authorization in the following six ways:
1. Reproducing eight photographs from the 2010 U.S. Open on the Defendant's website in a "free electronic preview" of the Fall 2010 edition of Racquetball Magazine;
2. Reproducing his photograph of racquetball player Kane Waselenchuk, taken at the 2010 U.S. Open, in the Defendant's 2011 Regional Qualifiers flier;
3. Creating a derivative work of his photograph of racquetball player Alvaro Beltran, taken at the 2010 U.S. Open, by reproducing it in a slightly blurred form on the cover of the Defendant's 2011 Rulebook;
4. Creating a derivative work of one photograph from the 2010 U.S. Open and reproducing the photograph in a slightly blurred form in a flyer for the Defendant's Instructor Program, which was included in the Winter 2011 edition of Racquetball Magazine;
5. Reproducing a series of his photographs in a packet advertising sponsorship opportunities for one of the Defendant's tournaments in 2011;
6. Providing copies of five photographs from the 2009 U.S. Open to a third-party, the United States Racquetball Foundation, which photographs then appeared on the third-party's website and in a live presentation by one of its representatives.
Illinois." Neither party has requested transfer of this case or otherwise questioned the Court's jurisdiction to consider it, and thus, the Court treats this particular provision as having been waived by both parties.
Mr. Boatman further alleges that two of the photographs that he provided to the Defendant from the 2010 U.S. Open contained his copyright watermark, and that the Defendant reproduced those two photographs without the copyright watermark.
For these alleged acts, Mr. Boatman brings two claims: (1) copyright infringement under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., and (2) violation of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. §§ 1201 et seq. Mr. Boatman also asserts that he is entitled to enhanced statutory damages under 17 U.S.C. § 504(c)(2) due to the Defendant's alleged willful infringement of his copyrights. Both parties move for summary judgment in their favor.
II. Summary Judgment Standard
Although Rule 56 of the Federal Rules of Civil Procedure was recently restyled, its purpose remains the same - to provide for a summary determination when no trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Accordingly, Rule 56(a) directs entry of a judgment on a claim or defense, or part thereof, when there is no ...