UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MATHIESON ASSOCIATES, 

INCORPORATED; CNP,

Plaintiffs-Appellants,

v.  No. 00-2444

CHARLES L. SHOUP; ANN L. SHOUP;

THE ARTIST’S PROOF, INCORPORATED;

POLITICAL AMERICANA; JIM WARLICK,

Defendants-Appellees. 

MATHIESON ASSOCIATES, 

INCORPORATED; CNP,

Plaintiffs-Appellees,

v.

CHARLES L. SHOUP; ANN L. SHOUP;

JIM WARLICK,  No. 00-2521

Defendants-Appellants,

and

THE ARTIST’S PROOF, INCORPORATED;

POLITICAL AMERICANA,

Defendants. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-99-1890-A)

Submitted: January 16, 2002

Decided: February 1, 2002
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and

Joseph R. GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

John M. DiJoseph, KAVRUKOV & DIJOSEPH, L.L.P., Arlington,

Virginia, for Appellants. James M. Loots, GOLDSTEIN LOOTS,

P.C., Washington, D.C.; William A. Marr, Jr., Matthew D. Banks,

LAW OFFICES OF WILLIAM MARR, JR., Fairfax, Virginia; Kevin

D. McInroy, MCINROY & RIGBY, L.L.P., Arlington, Virginia, for

Appellees. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Consolidated News Pictures (CNP), and its agent, Mathieson Associates, Inc. (MAI), appeal the district court’s order denying their

motion for partial summary judgment and granting James Warlick’s

cross-motion for summary judgment and the district court’s order

granting Defendants Charles and Ann Shoup’s (Shoup) and the Artist

Proof Inc.’s (API) motion for summary judgment in their copyright

infringement action. Warlick and Shoup appeal the court’s order

denying their motion for costs and attorney’s fees. We affirm all of

the district court’s orders. 

CNP copyrighted a 1963 photograph of sixteen-year-old Bill Clinton with President Kennedy and registered the copyright in 1994.

2 MATHIESON ASSOCIATES v. SHOUP
James Warlick is the majority owner of stores called Political Americana (PA), which retails political memorabilia. In the early 1990’s,

API, owned by Shoup, began wholesaling assortments of political

photographs in bulk to PA, including the Kennedy-Clinton photograph. API was PA’s sole source of the photographs. In 1995, Plaintiffs informed Shoup and API of the 1994 copyright registration and

granted API the nonexclusive right to market, advertise, and sell for

any price the photograph in any form or size, in exchange for the

negotiated royalty of one dollar for each image sold, retroactively

from September 20, 1995 until December 31, 1996. 

Plaintiffs allege Shoup and API continued to market the photograph after the licensing agreement expired by reproducing and selling it to PA and Warlick, who retailed the photographs at PA stores

as late as 1999 in violation of the Copyright Act, 17 U.S.C.A. §§ 101-

1101 (West 1996 & Supp. 2001). 

MAI and CNP sued Shoup, API, PA, and Warlick in federal court

alleging copyright infringement. Plaintiffs filed a motion for partial

summary judgment as to the liability of Warlick, Shoup, and PA.

Warlick filed a cross-motion for summary judgment and a motion for

costs and attorney’s fees. Shoup and API also moved for summary

judgment. The district court denied Plaintiffs’ motion for partial summary judgment and granted the motions for summary judgment filed

by Warlick, Shoup, and API, finding Shoup and API had the right to

sell the image wholesale to Warlick and PA, who in turn had the right

to retail the image under the licensing agreement and the "first sale

doctrine," codified at 17 U.S.C.A. § 109(a). The district court denied

Warlick’s motion for attorney’s fees and costs. Plaintiffs noted a

timely appeal of the rulings on the motions for summary judgment.

Warlick and Shoup filed a timely cross-appeal of the orders denying

costs and attorney’s fees. 

We review de novo the district court’s rulings on the motions for

summary judgment. Higgins v. E.I. DuPont de Nemours & Co., 863

F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is properly

granted when there are no genuine issues of material fact and when

the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251-52 (1986). In determining whether summary judgment

MATHIESON ASSOCIATES v. SHOUP 3
is appropriate, we view the facts in the light most favorable to the

non-moving party. Id. at 255. 

We conclude the licensing agreement between CNP and API provided for the direct retail or wholesale sale of the Kennedy-Clinton

photograph by API. We also find Warlick and PA, which purchased

the photographs wholesale then retailed the photographs to the general public, did not engage in copyright infringement. See 17

U.S.C.A. § 109(a); Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51

(1908) (holding purchaser of copyrighted item, once sold under

authority of the owner of the copyright, may sell it again). Thus, the

district court did not err in granting Defendants’ motions for summary

judgment and denying Plaintiffs’. 

We further affirm the district court’s order denying Shoup’s and

PA’s motion for costs and attorney’s fees, pursuant to § 505 of the

Copyright Act and Fed. R. Civ. P. 11. We find no abuse of discretion,

considering the lack of evidence Plaintiffs acted maliciously, frivolously, or without objective reasonableness. See Chaudhry v. Gallerizzo, 174 F.3d 394, 410 (4th Cir. 1999); Diamond Star Bldg. Corp.

v. Freed, 30 F.3d 503, 505-06 (4th Cir. 1994). 

Accordingly, we affirm. Having previously granted the

Appellees’/Cross-Appellants’ motion to submit these appeals on

briefs, we dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

AFFIRMED

4 MATHIESON ASSOCIATES v. SHOUP