IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50044

DELL CULLUM,

Plaintiff-Appellant

v.

DIAMOND A HUNTING, INCORPORATED, also known as Diamond A Ranch;

DALENEWHITE; DIAMOND A RANCH; DIAMOND A SPUR RANCH; DASRL,

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:*

Plaintiff-AppellantDell Cullum sued Defendants-Appellees Dalene White,

Diamond A Hunting, Inc., also known as Diamond A Ranch, and Diamond A

Spur Ranch (collectively, “DAR”) for copyright infringement under the Federal 1

United States Court of Appeals

Fifth Circuit

F I L E D

August 8, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

The additional named defendants—DASRL L.L.C., MDBW Enterprises, and Big 1

Timber Outdoor Trails — have not filed any briefs in this appeal and are not discussed by

Cullum in his briefs. Furthermore, it appears that the district court ordered Cullum’s Third

Case: 11-50044 Document: 00511950482 Page: 1 Date Filed: 08/08/2012
No. 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. White 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 and 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 continued to use the photographs,

and Cullum filed this lawsuit. DAR removed the photographs from its website

after suit was 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 denied in part the parties’ motions, concluding that Cullum had

granted DAR an oral license to use the photographs, but had revoked it when he

filed this lawsuit. The district court held that DAR was liable only for its

continued use of photographs in 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, and its denial of Cullum’s request for

Amended Complaint attempting to name these additional parties as defendants to be stricken

from the record. Accordingly, we do not address them in this appeal.

 17 U.S.C. § 101 et. seq.

2

 15 U.S. C. § 1051 et. seq. 

3

2

Case: 11-50044 Document: 00511950482 Page: 2 Date Filed: 08/08/2012
No. 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 an oral license, 4

we conclude that any error on this point is harmless because Cullum only sought 

summary judgment relief with respect to DAR’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

works for purposes of calculating damages. The record fully supports the

conclusion that Cullum’s photographs constituted one work “in which a number

of contributions, constituting separate and independent works in themselves, are

assembled into 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 these

photographs as “Set Number 1.” Furthermore, Cullum himself refers to the

6

photographs in the record on appeal as a “collection.” Therefore, the district

ROA at 2075 (“Defendants have not . . . demonstrated that plaintiff intended that 4

defendants copy and distribute the photographs, a requirement for establishing an oral

irrevocable license. . . Nor have defendants provided evidence that plaintiff received

consideration for taking the photographs, another requirement for establishing an oral

irrevocable nonexclusive license.”) (citations omitted). 

 17 U.S.C. § 101 (definition of “collective work” which is included in the definition of 5

“compilation”).

See also Bryant v. Media Right Prod., Inc., 603 F.3d 135, 141 & n.6 (2d Cir. 2010) 6

(concluding that separate songs collected on one album were a compilation, despite fact that

each song might have been separately copyrighted).

3

Case: 11-50044 Document: 00511950482 Page: 3 Date Filed: 08/08/2012
No. 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 abuse its discretion in determining the

amount of statutory damages under the Copyright Act. Awards of statutory

damages under 17 U.S.C. § 504(c)(1) may range from a minimum of $750 to a

maximum of $30,000 per infringement of one work. If the court finds willful

infringement, it may enhance an award for each individually liable infringer,

and for the number of works that are infringed, up to a total of $150,000.7

Between the statutory maximum and minimum,however,the court has virtually

unfettered discretion in deciding the quantum of damages to award in a

copyright infringement case.8 The court’s award of $950 in damages to Cullum

is well within that statutory range. Moreover, the district court made this

award after considering a detailed report and recommendation from the

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. “Prevailing 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 court’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 10

their respective attorneys fees. We perceive no abuse of discretion in this ruling.

 17 U.S.C. § 504(c)(2). 7

F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 232 (1952). 8

Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). 9

Id. at 534 & n.19 (quoting factors listed by the Third Circuit, and agreeing that such

10

factors may be considered “so long as such factors are faithful to the purposes of the Copyright

Act and are applied to prevailing plaintiffs and defendants in an evenhanded manner”.)

4

Case: 11-50044 Document: 00511950482 Page: 4 Date Filed: 08/08/2012
No. 11-50044

Finally, Cullum 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 failure to prosecute, (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 relied on as

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 court’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