NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 19a0471n.06 C ASE N O . 1 8
- 6207 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUI T

LARRY PHILPOT , P laintiff
- Appell ant ,

v . LM COMMUNICATIONS II OF SOUTH CAROLINA , Defendant
-

Appell ee . ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRI CT COURT FOR THE EAS T ERN DISTRICT OF KENTUCKY

Before: BATCHELDER , GRIFFIN , and DONALD , Circuit Judge s . ALICE M. BATCHELDER, C ircuit Judge. Larry Philpot appeals the denial of his demand for attorney’s fees i n this c opyright

- infringement action. We REVERSE

. Philpot is a professional concert photographer who, in 2009 , took a photograph of musician
Willie Nelson during a Farm Aid C oncert. Philpot register ed the photo with the U.S. Copyright
Office and received a ce rtificate of r egistration. In 2011, Wikipedia invited Philpot to post the photo on the “ Willie Nelson ” Wikipedia page. Philpot did so and offer s an y one 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 include s proper attribution to Philpot, including name, title, and uniform resource identifier, all of which are provided with the image file on Wikiped ia.No. 18

- 6207, Philpot v. LM Commc’ns II of S.C.

2 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 stat ion permission to use the Nelson photo outside of the scope of the Creative Commons license. On April 29, 2014, Philpot foun d 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 sue d LM Communications , r aising 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. T he 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, t he

court determined th at the infringement was not willful and exercised its “ wide discretion in settingNo. 18

- 6207, Philpot v. LM Commc’ns II of S.C.

3 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 foun d 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 tha t 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] wa s not a clear ‘ win ’ for Philpot. ”). T herefore, t he court denied Philpot’s motion for attorney’s fees and costs , which Philpot now appeal s . 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, w e 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

. ’ ” ). G iven 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 basi s . See BridgeportNo. 18

- 6207, Philpot v. LM Commc’ns II of S.C.

4 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)). T he c ourt 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).
W e therefore REVERSE the judgment of the district court and REMAND for reconsideration consistent with this opinion

.