UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-14296-Cannon/McCabe

AFFORDABLE AERIAL 

PHOTOGRAPHY, INC., 

Plaintiff,

v. 

PROPERTY MATTERS USA, LLC, 

and HOME JUNCTION, INC., 

Defendants. 

_________________________________/ 

REPORT & RECOMMENDATION

THIS CAUSE came before the Court upon Defendant’s Motion for Attorneys’ Fees and 

Costs (“Motion”) (DE 26), which was referred to the undersigned by United States District Judge 

Aileen M. Cannon (DE 27). For the reasons set forth below, the undersigned RECOMMENDS

that the Motion (DE 26) be DENIED. 

I. FINDINGS OF FACT

The Court held an evidentiary hearing on this Motion on April 13, 2023 (DE 46). Based 

on the evidence received and considered, the Court makes the following findings of fact.1

1. Robert Stevens is a professional photographer who specializes in aerial real estate 

photography. He conducts his work through an entity that he owns and controls called Affordable 

Aerial Photography, Inc. (“AAP”), which is the Plaintiff in this case. 

1 In making factual findings, the Court cites to documentary evidence admitted during the hearing

and relevant portions of the record. The factual findings are also based upon, or supplemented by,

the testimony as recalled by the Court, as the testimony has not been formally transcribed and 

made part of the record.

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2. In 2010, Stevens created an aerial photograph titled “PRESIDENTIAL PLACE 

FRONT AERIAL 2010 AAP” (hereafter “the Work”). The photograph depicts an aerial view of 

a multi-story residential condominium complex known as Presidential Place (DE 52-1 at ¶¶ 15-

17). AAP registered the Work for copyright protection in April 2018 (DE 52-1 at ¶ 16, DE 52-1 

at 18-20).

3. Over the years, AAP has amassed a large inventory of aerial real estate 

photographs, similar to the Work, which have been published in various forms. For many years, 

AAP has been aware that third parties commonly re-publish these photographs over the internet 

without licenses or permission. As the problem increased over the years, AAP began to take 

measures to search the internet for unlicensed use of AAP photographs. (DE 40 at 5 ¶¶ 8, 18; DE 

52-1 at ¶¶ 11, 13-14, 26-29).

4. Beginning by at least 2018, Stevens employed the following method to search for 

improper use of AAP’s photographs, assisted by Mateusz Rymarski, who works as an independent 

contractor for AAP (DE 40 at 5 ¶ 9). On an annual basis, Stevens and Rymarski work together to 

search each item in AAP’s inventory of published works, which consists of thousands of 

photographs. Stevens and Rymarski use one or more of the following methods to conduct these 

searches:

• Google reverse-image searches. This involves sitting at a computer and manually 

performing reverse-image searches, one at a time, of items in the AAP inventory

via Google.

• Tin Eye reverse-image searches. Like a Google reverse-image search, this method 

involves sitting at a computer and manually performing reverse-image searches of 

items in the AAP inventory, one at a time, via Tin Eye.

• Crawler searches. This method makes use of specialized internet “crawler”

software that AAP can access via an account held by AAP’s legal counsel. This 

method allows AAP to upload several hundred images at once. AAP must then sort 

through the results manually.

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5. Stevens and Rymarski regularly perform these searches on behalf of AAP as time 

permits within their schedules. They keep track of the items they have searched by segregating 

searched and un-searched items into different folders. Using this method, they make sure that each 

item of inventory is searched at least once per year. Rymarski estimates that he spends, on average, 

about two or three hours per day performing these searches. 

6. AAP’s search methods do not yield perfect results. In particular, reverse-image 

searches do not capture every possible location that a given photograph appears on the internet. 

Results vary based on factors such as the month and year of the search and the size of the 

photographed searched. Over the years, Stevens has discovered many instances of AAP copyright 

infringement that were not uncovered by AAP’s search techniques. 

7. AAP also called Joe Naylor, the owner and CEO of ImageRights International, Inc.

(“ImageRights”) as a witness.2

 ImageRights monitors the internet for copyright infringement on 

behalf of hundreds of copyright holder clients. ImageRights has a proprietary “crawler” software

that monitors the internet for infringement of its clients’ copyrighted images. This crawler 

software makes use of numerous servers devoted to reverse-image searching and image 

comparison.

8. Naylor testified that even the most sophisticated crawler software cannot capture 

all copyright infringement on the internet. He estimated that the internet contains over 3 trillion 

photos, with up to 5 billion images uploaded each day. Naylor testified that the ImageRights 

2 Property Matters objected to Naylor’s testimony as an improperly disclosed expert. The Court 

overruled this objection. Although a variety of rules govern the timing for disclosure for experts 

at trial, see e.g., Fed. R. Civ. P. 26; Fed. R. Civ. P. 36, these rules do not apply to the evidentiary 

hearing on this Motion. The Court set no disclosure time limits for this Motion, other than docket 

entry 39, which required a list of witnesses by April 6, 2023. AAP complied with that time limit 

(DE 40 at 8-9).

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software often misses instances of copyright infringement, and that his clients often report 

examples of copyright infringement that the company’s software did not capture. 

9. AAP used the search techniques discussed in paragraph four (4) above to search for 

copyright infringement of the Work, at least one time per year, from 2017 through 2022. During 

that time, AAP discovered several examples of copyright infringement of the Work. AAP did not,

however, discover the alleged infringement by Property Matters until February 21, 2022.

10. Specifically, on February 21, 2022, a reverse image search led AAP to discover the 

website of Property Matters, a real estate broker (DE 52-1 ¶¶ 24-25, DE 40 at 5 ¶ 4). The Property 

Matters’ website depicted the Work, alongside a description of the Presidential Place 

condominium, touting the benefits of purchasing a unit in the building (DE 52-1 ¶¶ 24-25; DE 40 

at 5 ¶ 1). Property Matters never purchased a license or otherwise received permission from AAP 

to use the Work on its website.

11. Once Stevens discovered the Property Matters website, he forwarded the matter to 

his attorney (DE 40 at 5 ¶ 4). Thereafter, on March 1, 2022, AAP’s attorney sent a demand letter 

and takedown request to Property Matters (DE 52-5, DE 56-1). 

12. On March 31, 2022, an employee of AAP’s counsel spoke to Property Matters’ 

owner, who advised that the company’s website had been created by another company, “Home 

Junction,” and that he was waiting to hear back from Home Junction. Later, in May 2022, AAP’s 

counsel sent additional emails to Property Matters, but recevied no substantive response except 

that Home Junction was “looking into it” (DE 56-3 at 2).

13. Having received no satisfactory response from either Property Matters or Home 

Junction, Stevens, on behalf of AAP, made the decision to sue both companies. To that end, on 

August 21, 2022, AAP filed a copyright infringement action pursuant to 17 U.S.C. § 501, naming

both Property Matters and Home Junction as defendants (DE 1, DE 40 at 5 ¶ 5). 

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14. Shortly thereafter, on August 23, 2022, the District Court entered an Order that (1) 

prohibited any defendant from filing a response or answer until all defendants had been served in 

the case, and (2) required combined responses or separate answers within the time allowed for the 

last-served defendant to respond (DE 5).

15. Despite this Order, on October 7, 2022, Property Matters filed a motion to dismiss

without waiting to combine its response with co-defendant Home Junction (DE 10). The District 

Court therefore denied Property Matters’ motion based on this violation of the Court’s instructions 

(DE 15).

16. In the meantime, AAP’s counsel began to engage in settlement discussions with 

Home Junction. Based on these ongoing settlement discussions, Stevens made the decision to 

dismiss the case against Property Matters. As such, on October 18, 2022, Plaintiff filed a notice 

of voluntary dismissal without prejudice as to Property Matters (DE 17). 

17. Thereafter, on November 9, 2022, AAP concluded its settlement discussions with 

Home Junction and filed a Notice of Settlement (DE 23), resulting in the administrative closing of 

the case (DE 24).

18. In total, the case against Property Matters remained pending for only eighty-one 

(81) days. 

II. DISCUSSION

Property Matters seeks entitlement to attorneys’ fees under the 17 U.S.C. § 505, which 

provides: 

In any civil action under this title, the court in its discretion may allow the recovery 

of full costs by or against any party other than the United States or an officer 

thereof. Except as otherwise provided by this title, the court may also award a 

reasonable attorney’s fee to the prevailing party as part of the costs. 

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(emphasis added). This statute requires the Court to resolve two issues: (A) whether Property 

Matters qualifies as a “prevailing party” under the language of § 505, and (B) if so, whether the 

Court should exercise its discretion to make an award of attorneys’ fees and costs. The Court 

addresses each issue in turn.

A. Prevailing Party

AAP voluntarily dismissed its case against Property Matters without prejudice (DE 17). 

“Ordinarily, a dismissal without prejudice is not a ‘judgment on the merits’ for purposes of 

declaring a prevailing party because it does not alter the legal relationship of the parties, as the 

plaintiff may re-file the case.” Sream, Inc. v. Smoke This Too, LLC, No. 16-cv-61439, 2017 WL 

3025864, at *2 (S.D. Fla. July 14, 2017) (cleaned up). Property Matters nevertheless argues it 

qualifies as the prevailing party because the Copyright Act’s three-year statute of limitations has 

now expired. As such, Property Matters argues it has “prevailed” because AAP cannot refile

another case. See Tomelleri v. Natale, No. 9:19-CV-81080, 2022 WL 2341237, at * 2 (S.D. Fla. 

Feb. 18, 2022) (noting that a dismissal without prejudice can have the effect of a dismissal with 

prejudice when the statute of limitations has expired). 

The Court disagrees. The Copyright Act requires a plaintiff to file suit “within three years 

after the claim accrued.” 17 U.S.C. § 507(b). A copyright infringement claim accrues “when 

plaintiff learned of or, in the exercise of reasonable diligence, should have learned of the alleged 

infringement.” See Tomelleri, 2022 WL 2341237 at * 2 (noting that courts in this district have 

“consistently applied” the discovery rule to copyright infringement actions); see also Nealy v. 

Warner Chappell Music, Inc., 60 F.4th 1325 (11th Cir. 2023) (applying discovery rule to copyright 

ownership action).

Applying that standard here, the Court finds that AAP’s claim “accrued” on the date of 

AAP’s actual discovery of the infringement, i.e., February 21, 2022. The Court finds that AAP 

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exercised reasonable diligence by making the discovery on this date, and that AAP need not be 

held to a higher level of diligence that might have led to an earlier discovery date. The Court bases 

this conclusion on the findings of fact set forth above, as adduced at the evidentiary hearing.

Because AAP’s claim accrued on February 21, 2022, the statute of limitations will not 

expire until February 21, 2025. See 17 U.S.C. § 507(b). Since the statute of limitations has not 

yet expired, Property Matters cannot be deemed the “prevailing party” for purposes of attorneys’ 

fees and costs under 17 U.S.C. § 505. As such, the Motion should be denied.

B. Discretion

Given the conclusion in section II.A, the Court need not proceed any further. Nevertheless, 

for the sake of completeness and for the benefit of the District Court, the undersigned makes the 

following alternative recommendation.

Even when a party qualifies as the “prevailing party,” § 505 of the Copyright Act vests 

courts with discretion to limit or withhold an award of attorneys’ fees and costs. Fogerty v. 

Fantasy, Inc., 510 U.S. 517, 534 (1994). In exercising this discretion, courts should consider

several factors, including: (1) the degree of success obtained; (2) frivolousness; (3) motivation; 

(4) objective unreasonableness (both in the factual and legal components of the case); and (5) the 

need in particular circumstances to advance considerations of compensation and deterrence. Id. at 

535 n.19; see also MiTek Holdings, Inc. v. Arce Eng’g Co., 198 F.3d 840, 842 (11th Cir. 1999)

(applying the Fogerty factors). Courts need not consider all of these factors in any given case, as 

“[t]here is no precise rule or formula for making these determinations.” Hensley v. Eckerhart, 461 

U.S. 424, 436 (1983).

The Court has considered the Fogerty factors here and finds no award of attorneys’ fees or 

costs to be proper. The case against Property Matters remained pending for eighty-one (81) days 

and involved very little activity, apart from a motion to dismiss that Property Matters filed in 

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violation of the District Court’s instructions. AAP sued only two defendants, and one of them – 

the creator of the website that allegedly infringed AAP’s copyright – settled. Although the Court 

never reached the merits of AAP’s claims against Property Matters, the Work nevertheless

remained on Property Matters’ website – presumably promoting Property Matters’ business – for 

some period of time. The Court finds it would not serve the purposes of the Copyright Act to 

award attorneys’ fee or costs to Property Matters under these circumstances. For this reason as 

well, the Motion should be denied. 

III. RECOMMENDATION & NOTICE OF RIGHT TO OBJECT

For the reasons stated above, the undersigned RECOMMENDS that the Motion (DE 26) 

be DENIED. 

The parties shall have fourteen (14) days from the date of being served with a copy of this 

Report and Recommendation within which to file written objections, if any, with United States 

District Judge Aileen M. Cannon. Failure to file objections timely shall bar the parties from a de 

novo determination by the District Judge of an issue covered in the Report and Recommendation 

and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions 

contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); 11th Cir. R. 3-1. 

RESPECTFULLY SUBMITTED in Chambers at West Palm Beach in the Southern 

District of Florida, this 10th day of May 2023. 

RYON M. MCCABE

U.S. MAGISTRATE JUDGE

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