### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50044

DELL CULLUM, Plaintiff-Appellant
v. DIAMOND A HUNTING, INCORPORATED, also known as Diamond A Ranch; D AL E N E W H I T E ; D IAM O N D A R AN C H ; D IAM OND A SP UR RAN C H ; D A S R L , L.L.C.; MDBW ENTERPRISES; BIG TIMBER OUTDOOR TRAILS, Defendants-Appellees

Appeal from the United States District Court for the Western District of Texas USDC No. 5:07-CV-0076

Before WIENER, ELROD, and SOUTHWICK, Circuit Judges. PER CURIAM: * Plaintif f

- Ap p e l l a nt D e l l C u l lu m s u e d D e f e n d a nt s - Appellees Dalene White, D i a m o nd A Hunting, Inc., also known as Diamond A Ranch, and Diamond A Spur Ranch (collectively, “DAR”) for copyright infringement under the Federal 1 U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D August 8, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. The add itio nal nam ed def enda nts —D ASRL L.L. C., MD BW Enter pr ise s, an d Big 1 Timb er Ou td oor Trails — have not fil ed any brie fs in this app e a l a n d a r e n o t dis cus se d by Cullum in his brie fs

. Furt herm ore , it app ears that the dist ric t cour t ord ere d Cullum ’s Third Case: 11-50044 Document: 00511950482 Page: 1 Date Filed: 08/08/2012No. 11-50044

Copyright Act, and for unfair trade practices and unfair competition under the 2 Lanham Act. He alleged that, without his permission, DAR used photographs

3 he had taken of the Diamond A Ranch and requested injunctive relief and damages, including lost profits, statutory damages, and attorneys fees. Cullum took the photographs in question while working as a ranch hand at Diamond A Ranch

. Wh i t e claims that Cullum gave her a compact disc containing the photographs which he had taken with her permission. Cullum denies having ever given the photographs to White. In any event, DAR somehow obtained the photographs a nd used some of them on its website and some in a printed brochure for a seminar that White periodically held at the ranch. After Cullum and White’s relationship soured, Cullum informed DAR that he held a copyright over the photographs and demanded that they not be used without his permission. DAR nevertheless continu e d to use the photographs, and Cullum filed this lawsuit. DAR removed the photographs from its website after su i t w a s filed, but continued to use some of them in its brochures for White’s seminar. Both parties moved for summary judgment. The district court granted in part and d e n i ed in part the parties’ motions, concluding that Cullum had granted DAR an oral license to use the photographs, but had revoked it when he f i l e d t his lawsuit. The district court held that DAR was liable only for it s continued use of photo g r a p h s i n the brochure, and it awarded Cullum $950 in damages. Cullum appeals the district court’s holding that he had granted DAR

an oral license, its award of damages, a n d its denial of Cullum’s request for

Ame nded Com plai nt att em pt ing to nam e thes e add itio nal par tie s as def enda nts to be st ric ke n fr om t he rec ord

. Ac cor dingly, w e d o n ot add res s them int his ap pea l.
17 U. S. C. § 1 01 et. seq . 2
15 U. S. C. § 1051 et. seq . 3 2 Case: 11-50044 Document: 00511950482 Page: 2 Date Filed: 08/08/2012No. 11-50044

attorneys fees, as well as a number of other rulings that the district court made during the course of this litigation. Our review of the appellate briefs and the record on appeal convinces us that the district court did not commit reversible error of fact or law with respect to any of Cullum’s assertions. Although the district court did not explain — and possibly contradicted — its finding that Cullum granted DAR a n oral license, 4

we conclude that any error on this point is harmless because Cullum only sought summary judgment relief with respect to D AR ’s continued use of the photographs following his filing suit. The district court found in Cullum’s favor on this point, so his appeal of this issue is moot. With respect to damages, we conclude that the district court did not abuse its discretion in treating the photographs as a compilation instead of individual

w o rks for purposes of calculating damages. The record fully supports t h e conclusion that Cullum’s photographs constituted one work “in which a number of contributions, constituting separ a t e a n d i n d e p e n d e nt w o rk s i n th e m s e lv e s , a re assembled i nto a collective whole.” Cullum registered the photographs in 5 question under a single copyright registration number, and he marked the disc that he filed with the United States Copyright Office containing t h e se p h o t ographs as “Set Number 1.” Furthermore, Cullum himself refers to th e 6 photographs in the record o n appeal as a “collection.” Therefore, the district

ROA at 2075 (“ De f

e n d a n t s h a v e not

. . . dem ons tra ted that plai ntif f inte nded that 4 def enda nts cop y and d i st ribut e the phot ograp hs, a requ irem ent for es tabl ish ing an oral irr evoca ble lice nse . . . Nor have def enda nts pr ovide d evide nce that plai ntif f rec eived cons ide rat ion for tak ing the phot ograp hs, anot her requ irem ent for es tab l i s h i n g an oral irr evoca ble nonexc lus ive lice nse .” ) (c itat ions om itt ed)

. 17 U. S. C. § 1 01 ( def

init ion of “co llec tive wo rk” wh ich is inclu ded in the def init ion of 5 “co mp ilat ion” ). See al s o B r

y a n t v . M

edi a Right Prod. , Inc. , 603 F.3d 135, 141 & n.6 (2d Cir. 2010) 6 (c oncl udin g that se par ate songs collec ted on one album wer e a comp ilat ion, des pit e fac t that eachs ong m ight have been se par atel y co pyri ghted). 3 Case: 11-50044 Document: 00511950482 Page: 3 Date Filed: 08/08/2012No. 11-50044

court did not commit any error in ruling that the photographs comprise a single compilation for purposes of copyright law. Neither did the district court ab u se its discretion in determining the amount o f s t atutory damages under the Copyright Act. Awards of statutory damages under 17 U.S.C. § 504(c)(1) may range from a min i m u m of $750 to a maximum of $3 0,000 per infringement of one work. If the court finds willful infringement, it may en h a n ce an award for each individually liable infringer, and for the number of works that are infringed, up to a total o f $ 1 50,000. 7 Between the statutory maxi m u m a n d m i ni m u m , h o w e v e r , the court has virtually unfettered discretion in deciding the quantum of damages t o a w a r d in a copyright infringement case. The court’s award of $950 in damages to Cullum 8 is well within that statutory rang e . M o r e o ver, the district court made this award after considering a detailed report and recommendation f r o m t he magistrate judge. We find no abuse of discretion. We also conclude that the district court did not abuse its discretion in denying Cullum’s request for attorneys fees. “Preva i l i n g plaintiffs and prevailing defendants are to be treated alike, but attorney’s fees are to be awarded to prevailing parties only as a matter of the c o urt’s discretion.” The 9 district judge weighed the relevant factors for awarding attorneys fees, as noted and discussed in Fogerty v. Fantasy, Inc., then held that the parties must bear 1 0 their respective attorneys fees. We perceive no abuse of discretion in this ruling.

17 U. S. C. § 5 04(c )( 2). 7
F.W. W ool wo rth Co

. v. Con temp ora ry Ar ts , 344 U. S. 228 , 232 (195 2). 8 Fogertyv . Fantasy, Inc. , 510 U. S. 517 , 534 (199 4). 9
Id. at 534 & n.19 (quo ting fac tor s lis ted by the Third Circ uit, and agree ing that suc h 1 0 fac tor s may be cons ide red “s o long as suc h fac tor s are fai thf ul to the pur pos es of the Copyr ight Act and are app liedt o p revail ing p laint iff s and def

enda nts inan evenhand ed man ner” .) 4 Case: 11-50044 Document: 00511950482 Page: 4 Date Filed: 08/08/2012No. 11-50044

Finall y , C u llum appeals numerous discretionary rulings made by the district court throughout the lengthy course of this litigation. He contends that the district court abused its discretion by (1) dismissing his Lanham Act claims for failur e t o p r o s e c ute, (2) denying his motion to supplement his brief on the issue of damages to add new allegations of copyright infringement, (3) denying his motion to amend his complaint, (4) denying his motion for a continuance of the trial setting, (5) denying his motion to strike evidence that DAR submitted in support of its motion for summary judgment, (6) denying his motion to refer the case for an investigation of possible criminal activity on the part of DAR, and (7) denying his motion to compel inspection of a disc that DAR reli e d o n a s summary judgment evidence. We have considered each of these assertions, and we are fully satisfied that each is meritless. For the foregoing reasons, the district cour t ’ s summary judgment and additional rulings that Cullum appeals are, in all respects, AFFIRMED.

5 Case: 11-50044 Document: 00511950482 Page: 5 Date Filed: 08/08/2012