United States Court of Appeals

for the Fifth Circuit ____________

No. 23-20188

____________

Michel Keck, 

Plaintiff—Appellant/Cross-Appellee,

Mathew Kidman Higbee; Higbee & Associates,

Cross-Appellees,

versus

Mix Creative Learning Center, L.L.C.; Jacqueline P. 

Kenneally; Does 1 through 10 inclusive,

Defendants—Appellees/Cross-Appellants.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:21-CV-430

______________________________

Before Jones, Smith, and Ho, Circuit Judges.

Edith H. Jones, Circuit Judge:

Defendant–Appellee Mix Creative Learning Center is an art studio 

that offers art lessons to children. In 2020, Mix Creative began selling “art 

kits” online so students could learn at home during the pandemic. One of 

these kits reproduced artworks from Plaintiff–Appellant Michel Keck’s Dog 

Art series. Keck sued Mix Creative and its proprietor for copyright and 

United States Court of Appeals

Fifth Circuit

FILED

September 18, 2024

Lyle W. Cayce

Clerk

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trademark infringement and sought enhanced statutory damages for willful 

infringement. The district court found that the fair use defense to copyright 

infringement applied and granted summary judgment to Mix Creative on the 

copyright claim. It also granted summary judgment to Mix Creative on the 

trademark claim, although Mix Creative had not sought summary judgment 

on that claim. Following summary judgment, the district court awarded fees 

and costs to Mix Creative under 17 U.S.C. § 505, but it declined to hold 

Keck’s trial counsel jointly and severally liable for the fee award under 28 

U.S.C. § 1927.

We conclude that (i) the fair use defense to copyright infringement 

applies since Mix Creative’s use was transformative and unlikely to cause 

harm to markets for Keck’s copyrighted works; (ii) any error in the district 

court’s sua sponte grant of summary judgment on the trademark claim was 

harmless; and (iii) the district court did not abuse its discretion in either fee 

ruling. The district court’s judgment is AFFIRMED.

I. Background

Michel Keck is a multi-media artist who has registered the works from 

her Dog Art series with the United States Copyright Office. She has also 

registered her name, “Michel Keck,” with the United States Patent and 

Trademark Office.

Defendant Jacqueline Kenneally is the sole proprietor of Mix Creative 

Learning Center. Mix Creative is an art studio in Houston, Texas, that has 

offered children’s art lessons since 2005. In 2020, Mix Creative began selling 

art kits online for at-home learning during the pandemic. These kits included

printed-out PowerPoint slides featuring an artist’s biography and artwork 

samples, along with a lesson plan and supplies for students to make their own 

art in the artist’s style. Students also had the opportunity to join a Zoom call 

with Kenneally to create art under her guidance.

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Keck was one of the artists whose work was featured in Mix Creative’s 

art kits. Kenneally discovered Keck’s dog-themed artwork online after 

searching Google images for “paintings of dogs.” She decided the artwork 

would interest her students and copied images from the internet for the kits. 

The Keck-inspired kits included printed-out slides with full images of Keck’s 

artwork (in addition to a slide with Keck’s biography); supplies such as paint, 

paint brushes, and collage paper; and a lesson plan with a Zoom link. Only 

six Keck-inspired kits were purchased, for a total of $240. Two of the purchases were made by Keck herself, who thereafter sued Mix Creative and 

Kenneally.

When Defendants were notified of Keck’s lawsuit, they immediately 

stopped selling the Keck-inspired kits and removed the category of art kits 

from Mix Creative’s website.

Keck’s complaint asserted copyright and trademark claims and sought 

enhanced statutory damages for willful infringement. After discovery, the 

parties filed cross-motions for summary judgment, neither of which briefed 

the trademark claims. At a hearing on the motions, the district court granted 

summary judgment to Defendants on the issue of enhanced damages, finding 

no evidence of willful infringement, but also granted summary judgment to 

Keck on all affirmative defenses apart from fair use and innocent infringement. In a written order that followed, the district court granted summary 

judgment to Defendants on copyright fair use as well as trademark fair use. 

Although neither party’s motion had addressed the trademark claim, the 

court stated its understanding that, during the motion hearing, both parties 

“expressed that their arguments [on the copyright claims] also appl[ied] to 

Plaintiff’s trademark claims.”

After prevailing on summary judgment, Defendants moved for fees 

and costs under 17 U.S.C. § 505 (the copyright fee-shifting provision), 28 

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U.S.C. § 1927, Rule 26(g) of the Federal Rules of Civil Procedure, and the 

court’s inherent power to sanction bad faith or vexatious litigants. The district court found that fee-shifting was appropriate under § 505 and awarded 

$102,404 in fees and $165.72 in costs against Keck and in favor of Defendants. However, the court declined to hold Keck’s attorneys jointly and severally liable for the award.

On appeal, Keck contends that the district court erred by granting 

summary judgment to Defendants on copyright fair use and by granting summary judgment sua sponte without prior notice on her trademark claim. She 

also challenges the fee award to Defendants. Defendants cross-appeal, arguing that the district court erred by refusing to hold Keck’s attorneys jointly 

and severally liability for fees and costs.

II. Discussion

We address copyright fair use before turning to the trademark claim 

and fee award.

A. Copyright Fair Use

The district court granted summary judgment in favor of Defendants 

based on the affirmative defense of copyright fair use. Summary judgment 

rulings are reviewed de novo by this court. Baker v. Am. Airlines, Inc., 430 

F.3d 750, 753 (5th Cir. 2005). Keck argues that the district court erred in 

weighing the fair use factors, particularly the first and fourth. We disagree.

The fair use doctrine is an “equitable rule of reason which permits 

courts to avoid rigid application of the copyright statute when, on occasion, 

it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U.S. 207, 236, 110 S. Ct. 1750, 1768 (1990) (citations and 

internal quotation marks omitted). It is codified as an affirmative defense to 

copyright infringement at 17 U.S.C. § 107. The statute lists several examples 

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of fair use of a copyrighted work, including “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, 

or research.” It then lists four factors for determining “whether the use 

made of a work in any particular case is a fair use”:

(1) the purpose and character of the use, including whether 

such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation 

to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value 

of the copyrighted work.

17 U.S.C. § 107. All four factors “are to be explored, and the results weighed 

together, in light of the purposes of copyright.” Campbell v. Acuff-Rose Music, 

Inc., 510 U.S. 569, 578, 114 S. Ct. 1164, 1171 (1994). The factors are not exclusive, however, and “[a] fair-use defense can succeed even if one or more 

factors favor the claimant.” Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 

27 F.4th 313, 321 (5th Cir. 2022). “Courts typically give particular attention 

to factors one and four (the purpose and market effect of the use).” Id.

The district court found that the first and fourth factors favored Defendants, whereas the second and third factors favored Keck.1 As the parties

do, we focus our discussion on the first and fourth factors.

_____________________

1 According to the district court, the second factor (the nature of the copyrighted 

work) and the third factor (the amount and substantiality of the portion used) favored Keck 

because her copyrighted work was expressive, not merely factual, in nature, and Mix 

Creative copied six complete pieces of her art from the internet. We agree with the district 

court’s analysis of these two factors.

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1.

The “central question” of the first factor, the “purpose and character 

of the use,” is “whether the new work merely supersede[s] the objects of the 

original creation . . . (supplanting the original), or instead adds something 

new, with a further purpose or different character.” Andy Warhol Found. for 

the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 527-528, 143 S. Ct. 1258, 1274

(2023) (internal quotation marks omitted) (quoting Campbell, 510 U.S. at 

579, 114 S. Ct. at 1171). This factor “relates to the problem of substitution—

copyright’s bête noire.” Id. at 528. A use that has a purpose or character

similar to that of the original copyrighted work is more likely to serve as a 

substitute for the original; the same is not true of a use that has a further purpose or different character. Id.

“A use that has a further purpose or different character is said to be 

‘transformative.’” Id. at 529, 143 S. Ct. at 1275 (quoting Campbell, 510 U.S. 

at 579, 114 S. Ct. at 1171). “‘[T]ransformativeness’ is a matter of degree.” 

Id. The more different the purpose or character of the use is, “the more likely 

the first factor weighs in favor of fair use.” Id. Yet not all transformations of 

an original work are “transformative” in the fair use sense. Copyright holders also have the exclusive right “to prepare derivative works” of their copyrighted material. 17 U.S.C. § 106(2). These are works “based upon one or 

more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version . . . , or any other form in 

which a work may be recast, transformed, or adapted.” Id. § 101 (emphasis 

added). To preserve the right of copyright holders to prepare derivative 

works, “the degree of transformation required to make ‘transformative’ use 

of an original [in the fair use sense] must go beyond that required to qualify 

as derivative.” Warhol, 598 U.S. at 529, 143 S. Ct. at 1275.

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An “additional ‘element of the first factor’” is whether the use is 

commercial or nonprofit in nature. Id. at 531, 143 S. Ct. at 1276 (quoting 

Campbell, 510 U.S. at 584, 114 S. Ct. at 1174). Although the commercial nature of a use disfavors finding for defendants on the first factor, it is “not 

dispositive.” Id. Instead, “it is to be weighed against the degree to which 

the use has a further purpose or different character.” Id. The “justification 

for the use” is also a relevant consideration. Id. “In a broad sense, a use that 

has a distinct purpose is justified because it furthers the goal of copyright, 

namely, to promote the progress of science and the arts, without diminishing 

the incentive to create.” Id. A use may also be justified in a “narrower 

sense,” when “copying is reasonably necessary to achieve the user’s new 

purpose,” as with a parody of an original work. Id. at 532, 143 S. Ct. at 1276.

The district court correctly found that the first factor weighed in Defendants’ favor. Although Mix Creative is a commercial enterprise, its use 

of Keck’s copyrighted works was transformative, as the art kits had an educational purpose that was significantly different from the original, decorative 

purpose of Keck’s dog-themed artworks. Along with printed images of the 

artworks, the kits included lesson plans, PowerPoint slides with Keck’s biographical information, and materials for students to create their own art, inspired by Keck’s. As the district court observed, Mix Creative “drew on 

Plaintiff’s art not for its inherent expressive value but for what it, accompanied by materials and instruction in art theory and history, could teach students.” Mix Creative is, after all, a learning center, not a gallery or print 

shop. Moreover, because Mix Creative’s art kits were designed and sold to 

inspire students to create their own art, its use of Keck’s artwork was also 

“justified” in the broad sense mentioned above. See id.

Keck argues that the Supreme Court’s recent decision in Andy Warhol 

Foundation v. Goldsmith shows that Mix Creative’s use was in fact not transformative. We disagree. In Warhol, photographer Lynn Goldsmith took a 

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black and white portrait photograph of Prince in 1981 for Newsweek magazine, which she registered with the Copyright Office and subsequently licensed to other magazines. She alleged that the Andy Warhol Foundation 

infringed her copyright in 2016 by licensing Andy Warhol’s silkscreen adaptation of her photograph (titled “Orange Prince”) to Condé Nast for a special 

edition magazine following Prince’s death. Id. at 516–19, 143 S. Ct. at 1266–

69. As Keck notes, the Warhol Court focused on the Foundation’s “specific 

use” of Goldsmith’s photograph in analyzing whether the use was transformative, and ultimately concluded it was not. See id. at 526, 143 S. Ct. at 1273. 

But in Warhol the purpose of the Foundation’s “specific use” was, according 

to the Court, “substantially the same” as the purpose of the original photograph. Both the original and the adaptation that the Foundation licensed to 

Condé Nast were “portraits of Prince used in magazines to illustrate stories 

about Prince.” Id. at 535, 143 S. Ct. at 1278. The Foundation’s “licensing 

of the Orange Prince image thus . . . shared the objectives [] of Goldsmith’s 

photograph.” Id. Not so here. As noted, the art kits had educational objectives, while the original works had aesthetic or decorative objectives. The 

purpose of Mix Creative’s specific use thus was not “substantially the same” 

as that of the original works, and there was little threat that the art kits would 

serve as substitutes for the originals.

In arguing otherwise, Keck attempts to frame the specific use by Mix 

Creative as “the online, e-commerce sales of Keck’s entire works.” This 

framing oversimplifies Warhol’s inquiry into objectives and fails to distinguish the commercial-nature inquiry from the more nuanced inquiry into 

whether a secondary use has a further purpose or different character. Keck

also contends that the district court’s interpretation of the purpose of the art 

kits as educational was subjective rather than objective. See id. at 544, 143 S. 

Ct. at 1284 (stating that “the subjective intent of the user (or the subjective 

interpretation of a court) [does not] determine the purpose of the use”). But 

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there is no issue of subjective interpretation here. Purely objective considerations of Mix Creative’s business model and the materials in the art kits are 

enough to discern their distinct, educational purpose.

The first factor favors Defendants.

2.

The fourth factor considers “the effect of the use upon the potential 

market for or value of the copyrighted work.” 17 U.S.C. § 107(4). In assessing this factor, courts look to “the amount of money that the copyright 

owner might lose,” Google LLC v. Oracle Am., Inc., 593 U.S. 1, 35, 141 S. Ct. 

1183, 1206 (2021), and also, “more broadly, whether widespread use of the 

work in the same infringing fashion ‘would result in a substantially adverse 

impact on the potential market’ for the original work and any derivative,” 

Bell, 27 F.4th at 324 (quoting Campbell, 510 U.S. at 590, 114 S. Ct. at 1177). 

“This last factor is undoubtedly the single most important element of fair 

use.” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566, 

105 S. Ct. 2218, 2233 (1985).

As the district court correctly found, the fourth factor favors Defendants. We share the district court’s difficulty in imagining “how the use of 

Plaintiff’s art for children’s art lessons devalues her pieces’ market worth. 

The widespread use of Plaintiff’s art for educational lessons would likely, if 

anything, increase her name recognition and commercial value.” This court 

came to a similar conclusion in Bell v. Eagle Mountain, 27 F.4th at 325 (“If 

anything, the properly attributed quotation of a short passage from Winning 

Isn’t Normal might bolster interest in the book; it is free advertising.”). The 

transformative nature of Mix Creative’s use also supports a conclusion 

against market harm. As the Warhol Court observed, “A secondary use that 

is more different in purpose and character is less likely to usurp demand for 

the original work or its derivatives.” 598 U.S. at 536 n.12, 143 S. Ct. at 1279 

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n.12; see also Campbell, 510 U.S. at 591, 114 S. Ct. at 1177 (“[W]hen . . . the 

second use is transformative, market substitution is at least less certain, and 

market harm may not be so readily inferred.”).

Keck contends that Defendants failed to adduce sufficient evidence 

about relevant markets to satisfy their burden of proof on this factor. This is 

incorrect. Kenneally’s sworn declaration attests that Defendants are “not in 

the business of selling art works or reproductions of art by well-known artists” and that Mix Creative uses artists’ works for educational purposes only. 

This evidence simply confirms what is obvious from Defendants’ business 

model, that Mix Creative does not participate in the same markets as Keck.

Keck also argues that she presented evidence of harm to markets for 

derivatives of her works, but the proffered evidence is nothing more than 

“Defendants’ own sales for derivative uses of Keck’s artwork.” This court 

has written that “we cannot recognize a ‘theoretical market for licensing the 

very use at bar.’” Bell, 27 F.4th at 325 (quoting Swatch Group Mgmt. Services 

Ltd. v. Bloomberg L.P., 756 F.3d 73, 91 (2d Cir. 2014)). We instead consider 

whether there is a “‘traditional, reasonable, or likely to be developed market[ 

]’ for licensing the kind of use at issue.” Id. (internal citation omitted). Keck 

offered no evidence that such a market exists or could reasonably be expected 

to develop. As Defendants put it, “There is no evidence in the record that 

Ms. Keck has any licensees for her artwork at issue for purposes of providing 

interactive ‘teaching tool’ products for art lessons to children, or any similar 

products . . . .” This court found a similar argument persuasive in Bell. Id.

(“Bell is unable to allege that anyone has ever purchased a license before 

posting the WIN Passage on social media . . . .”).

Finally, Keck contends that the district court failed to consider 

whether hypothetical “widespread use of the work in the same infringing 

fashion” as that of Mix Creative would harm the relevant markets. This 

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argument fails, too. Widespread use cannot have an impact on markets that 

do not exist and are unlikely to be developed, as is the case with derivative 

“teaching tool” products here, for the reasons just stated. Keck’s further 

contention that Mix Creative’s use, if widespread, would harm the market 

for reproductions of her artwork defies common sense. Kenneally, through 

Mix Creative, allegedly infringed Keck’s copyrights by simply copying online

images of Keck’s artworks and printing them on paper for inclusion in the 

kits. It is implausible that printing publicly available images in this manner 

would negatively impact the market for professional reproductions of an artist’s work.

The fourth factor favors Defendants. Accordingly, because the two

most importantstatutory factors governing fair use favor Defendants, the district court correctly rejected Keck’s copyright claim.

B. Trademark Claim

Neither party briefed the trademark claim below, but the district court 

sua sponte granted summary judgment to Defendants after it evidently concluded from an exchange during the motion hearing that the parties agreed 

that their arguments on copyright fair use applied to the trademark claim as 

well. Although trademark and copyright claims are governed by different 

standards,2 Keck did not emphasize this in the district court but rather conceded that the trademark and copyright claims were interchangeable. We 

accordingly hold that any error in the district court’s sua sponte grant of summary judgment without notice was harmless.

_____________________

2 “[T]rademark fair use and copyright fair use are distinct defenses for distinct 

claims.” Warner Bros. Entm’t, Inc. v. X One X Productions, 840 F.3d 971, 980 (8th Cir. 

2016).

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“While district courts may grant summary judgment sua sponte they 

must first give the parties ‘notice and a reasonable time to respond.’” D’Onofrio v. Vacation Publications, Inc., 888 F.3d 197, 210 (5th Cir. 2018) (first citing Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 28 

F.3d 1388, 1397 (5th Cir. 1994), then quoting Fed. R. Civ. P. 56(f)). This 

court “strictly enforce[s]” the notice requirement but also recognizes that 

“the harmless error doctrine applies to lack of notice required by rule 56[f].” 

Id. (citing Leatherman, 28 F.3d at 1397–98). Under the harmless error doctrine, an appellate court may affirm sua sponte dismissal without notice “if 

the nonmoving party admits that he has no additional evidence anyway” or 

if “the appellate court evaluates all of the nonmoving party’s additional evidence and finds no genuine issue of material fact.” Id. (citation omitted).

At the summary judgment hearing on the parties’ cross-motions, the 

district court asked counsel for each side about the trademark claim. Counsel 

for Defendants responded that he had “presume[d]” that the trademark and 

copyright claims were one and the same because, in his understanding, the 

trademark was “embedded” in the copyrighted art. The court asked counsel 

for Keck, “Is that how you see it?” to which counsel responded, “Yes your 

honor.” Keck’s counsel then confirmed that the court did not “need to deal 

with something for the trademark.”

The above exchange amounts to a concession by Keck that the trademark and copyright claims were interchangeable. Counsel may not now, on 

appeal, abandon that concession on which the district court relied. Cf. Smith 

v. United States, 328 F.3d 760, 770 (5th Cir. 2003) (“A party’s concession of 

an issue means the issue is waived and may not be revived.”). Given the 

concession, moreover, we conclude that any failure by the district court to 

expressly notify Keck that it would rule on the trademark claim in its forthcoming order was harmless. This is essentially identical to one of the situations in which this court has found harmless error in the past, i.e., when “the 

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nonmoving party admits that he has no additional evidence anyway.” See 

Leatherman, 28 F.3d at 1398.

C. Fees

Finally, the district court awarded $102,404 in fees to Defendants under 17 U.S.C. § 505, but refused to hold Keck’s counsel, Higbee & Associates, jointly and severally liable for the fee award under 28 U.S.C. § 1927. 

Keck argues that the district court committed several errors contravening the 

Supreme Court’s decision in Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S. Ct. 

1023 (1994), in granting fees to Defendants; misapplied the factors provided 

by the Fogerty opinion, id. at 534 n.19, 114 S. Ct. at 1033 n.19; and failed to 

reduce fees for time spent on motions and issues that Keck prevailed on in 

the trial court. In their cross-appeal, Defendants argue that the district court 

erred by refusing to hold Keck’s trial counsel jointly and severally liable for 

the fee award.

This court reviews fee awards under the deferential abuse of discretion standard. Virgin Records Am., Inc. v. Thompson, 512 F.3d 724, 725 (5th 

Cir. 2008). “A trial court abuses its discretion in awarding or refusing to 

award attorney’s fees when its ruling is based on an erroneous view of the law 

or a clearly erroneous assessment of the evidence.” Id. (citation omitted).

The district court did not abuse its discretion in awarding fees to Defendants under § 505. In this circuit, “an award of attorney’s fees to the prevailing party in a copyright action is the rule rather than the exception and 

should be awarded routinely.” Hunn v. Dan Wilson Homes, Inc., 789 F.3d 

573, 588–89 (5th Cir. 2015) (citation omitted). Contrary to Keck’s arguments, the language in the district court’s fee order does not contradict any 

of the holdings of Fogerty, 510 U.S. 517, 114 S. Ct. 1023, nor did the district 

court misapply the factors listed in that opinion, which in any event are nonexclusive. And given that fair use is a complete defense to copyright 

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infringement, and Keck lost on fair use, the district court did not err in refusing to reduce fees for time Keck spent on non-dispositive motions and issues.

Although this issue is closer, neither did the district court abuse its 

discretion by refusing to hold Higbee & Associates jointly and severally liable 

for the fee award under 28 U.S.C. § 1927. Before imposing sanctions under 

§ 1927, “a court must ensure that, pursuant to the plain terms of § 1927, the 

offending attorney’s multiplication of the proceedings was both ‘unreasonable’ and ‘vexatious’; evidence of recklessness, bad faith, or improper motive 

must be present.” Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc., 38 

F.3d 1414, 1416–17 (5th Cir. 1994) (citations omitted). It is troubling that 

Keck alone will be liable for the high fees incurred by Defendants largely because of Higbee & Associates’ overly aggressive litigation strategy. From our 

review of the record, the law firm lacked a firm evidentiary basis to pursue 

hundreds of thousands of dollars in statutory damages against Defendantsfor 

willful infringement. Nevertheless, we cannot say, on an abuse of discretion 

standard, that the district court erred by determining that there was insufficient evidence that the firm’s conduct was both unreasonable and vexatious.

The trial court was in the best position to assess the firm’s motivation and 

tactics. But we warn Higbee & Associates that future conduct of this nature 

may well warrant sanctions, and nothing in this opinion prevents Higbee & 

Associates from compensating its client, if appropriate, for the fees that she 

is now obliged to pay Defendants.

III. Conclusion

The judgment of the district court is AFFIRMED.

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