NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0471n.06

CASE NO. 18-6207

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LARRY PHILPOT,

 Plaintiff-Appellant,

 v.

LM COMMUNICATIONS II OF SOUTH 

CAROLINA,

 Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF KENTUCKY

Before: BATCHELDER, GRIFFIN, and DONALD, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Larry Philpot appeals the denial of his 

demand for attorney’s fees in this copyright-infringement action. We REVERSE.

Philpot is a professional concert photographer who, in 2009, took a photograph of musician 

Willie Nelson during a Farm Aid Concert. Philpot registered the photo with the U.S. Copyright 

Office and received a certificate of registration. In 2011, Wikipedia invited Philpot to post the 

photo on the “Willie Nelson” Wikipedia page. Philpot did so and offers anyone a license to use 

the Nelson photo free of charge, so long as they comply with the Creative Commons Attribution 

2.0 Generic License, which includes proper attribution to Philpot, including name, title, and 

uniform resource identifier, all of which are provided with the image file on Wikipedia. 
No. 18-6207, Philpot v. LM Commc’ns II of S.C.

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LM Communications is a media company comprising 12 radio stations in three states and 

headquartered in Lexington, Kentucky. One of its stations is the Bridge 105.5 in Charleston, South 

Carolina, which has four or five employees and its own website, 1055thebridge.com. Lynn Martin 

is the owner and president of LM Communications. In February 2014, a concert promoter paid 

the Bridge 105.5 for on-air advertising to promote a concert featuring Willie Nelson and Alison 

Krauss. At about the same time, or shortly thereafter, someone at the Bridge 105.5 added a post 

announcing the concert to the 1055thebridge.com website’s “Community Events” page, which 

publicizes noteworthy community events of interest to Bridge 105.5 listeners. 

The post included photos of Nelson and Krauss, with the photo of Nelson clearly being 

Philpot’s photo from the Wikipedia page. But the posted image did not provide attribution to 

Philpot or refer to the Creative Commons license. And Philpot had not given the station permission 

to use the Nelson photo outside of the scope of the Creative Commons license. On April 29, 2014, 

Philpot found the Nelson photo on the Bridge 105.5 Community Events page and took a screen 

shot to record it there. LM Communications concedes that the Nelson photo on its page was 

Philpot’s photo from Wikipedia, posted without attribution to Philpot, and that someone at the 

Bridge 105.5 had done it, most likely a long-forgotten, unpaid intern. 

In April 2017, Philpot sued LM Communications, raising multiple claims, chief among 

them copyright infringement under 17 U.S.C. § 501 for which he sought statutory damages via

§ 504(c)(1), which can range from $3,500 to $30,000, and reasonable attorney’s fees as a 

prevailing party via § 505. The district court granted summary judgment to Philpot on the issue 

of copyright infringement, leaving extant only the determination of damages. 

The parties requested a bench trial to determine damages. Following a one-day trial, the 

court determined that the infringement was not willful and exercised its “wide discretion in setting 
No. 18-6207, Philpot v. LM Commc’ns II of S.C.

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damages within the statutory range” to find that “an award of $3,500.00 is sufficient under 

§ 504(c)(1) to serve the goals of the Copyright Act.” Philpot v. L.M. Commc’ns II of S.C., Inc., 

343 F. Supp. 3d 694, 700-03 (E.D. Ky. 2018). The court found that LM Communications had 

“reaped no profit and saved no expense by use of the Nelson photograph,” id. at 703, and that 

Philpot had “failed to provide any evidence concerning actual damages or revenues lost,” id. at 

704. The court nevertheless held “that an award of statutory damages also serves the purpose of 

deterring wrongful conduct.” Id.

As for Philpot’s claim for attorney’s fees, the district court held that Philpot was not “a 

clear prevailing party,” as is necessary to satisfy § 505. Id. at 704-05 (citations omitted) (“[G]iven 

the amount of claims he lodged and the relatively small award [he obtained] . . . relative to what 

he sought[,] [t]he [judgment] was not a clear ‘win’ for Philpot.”). Therefore, the court denied 

Philpot’s motion for attorney’s fees and costs, which Philpot now appeals.

Philpot argues that the district court erred as a matter of law by concluding that he was not 

the “prevailing party” under § 505. Because he did prevail on his infringement claim, we agree. 

See Thoroughbred Software Int’l, Inc. v. Dice Corp., 488 F.3d 352, 362 (6th Cir. 2007) (“In 

copyright infringement cases, generally, the prevailing party is one who succeeds on a significant 

issue in the litigation that achieves some of the benefits the party sought in bringing suit.” 

(quotation marks, editorial marks, and citation omitted)); Bridgeport Music, Inc. v. Diamond Time, 

Ltd., 371 F.3d 883, 893 (6th Cir. 2004) (“[W]hen a [party] succeeds in having summary judgment 

entered in its favor on the copyright infringement claims . . . , that [party] can only be described as 

having ‘prevailed.’”). Given the district court’s summary judgment that LM Communications had 

infringed Philpot’s copyright, Philpot was a prevailing party. The district court erred in holding 

otherwise and abused its discretion by denying him attorney’s fees on this basis. See Bridgeport 
No. 18-6207, Philpot v. LM Commc’ns II of S.C.

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Music, Inc. v. WB Music Corp., 520 F.3d 588, 592 (6th Cir. 2008) (“The grant of fees and costs is 

the rule rather than the exception and they should be awarded routinely.” (quotation marks, 

editorial marks, and citation omitted)). The court must apply the Fogerty factors to Philpot’s claim 

for attorney’s fees with recognition of Philpot as a prevailing party. See Fogerty v. Fantasy, Inc., 

510 U.S. 517 (1994); Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. --, 136 S.Ct. 1979 (2016). 

We therefore REVERSE the judgment of the district court and REMAND for 

reconsideration consistent with this opinion.