Case 8:11-cv-02014-JDW-TBM Document 60 Filed 01/15/13 Page 1 of 21 PageID 2364

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BIG CAT RESCUE CORP.,
Plaintiff,

vs.

Case No.: 8:U-cv-02014-JDW-TBM

BIG CAT RESCUE ENTERTAINMENT
GROUP, INC. et aI.,
Defendants.

--------------------------------~/
ORDER
BEFORE THE COURT is Plaintiffs Motion for Summary Judgment (Dkt. 42), to which
Defendants have responded (Dkt. 48). Upon consideration, the Motion is GRANTED in part and
DENIED in part.
I.

FACTUAL AND PROCEDURAL BACKGROUND

This is a lawsuit for copyright infringement of a photograph. The photograph was taken on
April 25, 2010, by Julie Hanan, who assigned ownership to Plaintiff Big Cat Rescue Corporation.

(See Dkts. 32-2,32-3.) Plaintiff registered the photograph and holds a valid copyright as of August
25,2011. (Dkt. 32-3.)
Plaintiff alleges that Defendants Joe Schriebvogel ("Schriebvogel"), Big Cat Rescue
Entertainment Group, Inc. ("BCRE"), and G.W. Exotic Memorial Animal Foundation ("GW
Exotic") obtained the photograph in mid-20ll (before registration) and began distributing it on the
Internet. (See Dkt. 32; Dkt. 42 at 2.) After discovering the reproductions, Plaintiff provided
notifications of Defendants' activity under the Digital Millennium Copyright Act ("DMCA"), 17

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u.S.C. § 512, which prompted service providers to remove the photograph or videos containing the
photograph. (See, e.g., Dkts. 24, 29, 43.) Defendants provided counter notifications in response to
YouTube' s removal of some videos, asserting under penalty of perjury that they were removed in
error. 1 (See, e.g., Dkt. 42-14 at 2-3, 15.)
Plaintiff filed suit on September 2, 2011 (Dkt. 1), and Defendants waived service on October
27, 2011 (Dkt. 6). On September 7, 2012, Plaintiff was granted leave to file a Supplemental
Amended Complaint (Dkt. 31) to add alleged instances of copyright infringement, which was filed
on September 8, 2012 (Dkt. 32).2
Count I ofthe Supplemental Amended Complaint seeks relief under 17 U.S.C. §§ 501-505
for willful copyright infringement. (See Dkt. 32 ~~ 64-74.) Count II alleges that Defendants made
false statements in the counter-notifications to YouTube in violation of the DMCA, 17 U.S.C. §
512(f). (See Dkt. 32

~~

75-78.) In their Amended Answer to the initial Complaint (Dkt. 22),

Defendants deny the claims and assert six "affirmative defenses": (l) failure to state a claim on
which relief may be granted; (2) estoppel; (3) fair use; (4) misuse of copyright or unclean hands; (5)
the harm was caused by parties not joined in this case; and (6) the harm was incurred as a result of
others beyond the control of Defendants. (Dkt. 22 at 6-7.)

II.

STANDARD

lIn response to the DMCA notifications by the service providers, Defendants responded with the following
statement:
I swear, under penalty of perjury, that I have a good faith belief the material was removed due to a
mistake or misidentification of the material to be removed or disabled.
Joseph Schriebvogel
(Dkt. 42-14 at 2-3, 15.)
2Defendants have not filed an answer or other responsive pleading to the Supplemental Amended Complaint.
Their last responsive pleading was an Amended Answer and Affirmative Defenses to the initial Complaint (Dkt. 22).

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Summary judgment is appropriate where "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). "A genuine factual
dispute exists only if a reasonable fact-finder' could find by a preponderance of the evidence that the
[non-movant] is entitled to a verdict. '" Kernel Records Oyv. Mosley, 694 F.3d 1294, 1300 (II th Cir.
2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material ifit
may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d
642, 646 (11th Cir. 1997).
The moving party bears the initial burden of showing the court, by reference to materials on
file, that there are no genuine disputes of material fact that should be decided at trial. Hickson Corp.
v. N Crossarm Co., Inc., 357 F.3d 1256,1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). If the moving party fails to demonstrate the absence ofa genuine dispute, the
motion should be denied. Kernel Records, 694 F.3d at 1300 (citing Adickes v. 8.H Kress & Co., 398
U.S. 144, 160 (1970); Clarkv. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991)). Once
the movant adequately supports its motion, the burden shifts to the nonmoving party to show that
specific facts exist that raise a genuine issue for trial. Dietz v. Smithkline Beecham Corp., 598 F.3d
812, 815 (11th Cir. 2010). The nonmoving party must "go beyond the pleadings," and designate
specific facts showing that there is a genuine dispute. Jeffery v. Sarasota White Sox, Inc., 64 F.3d
590,593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324). The district court need not "parse a
summary judgment record to search out facts or evidence not brought to the court's attention."

Atlanta Gas Light Co. v. UGI Utilities, Inc., 463 F.3d 1201, 1208 n.11 (11th Cir. 2006). A mere
scintilla of evidence in the form of conclusory allegations, legal conclusions, or evidence that is
merely colorable or not significantly probative of a disputed fact cannot satisfy a party's burden.

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Avirgan v. Hull, 932 F.2d 1572, 1577 (lIth Cir. 1991); Kernel Records, 694 F.3d at l301.
The evidence presented must be viewed in the light most favorable to the nonmoving party.

Ross v. Jefferson Cnty. Dep't a/Health, 695 F.3d 1183, 1185 (11 th Cir. 2012). If there is a conflict
between the parties' allegations or evidence, the nonmoving party's evidence is presumed to be true.

Shatz v. City 0/ Plantation, Fla., 344 F .3d 1161, 1164 (11 th Cir. 2003). "Although all justifiable
inferences are to be drawn in favor of the nonmoving party," Baldwin Cnty v. Purcell, 971 F.2d
1558, 1563-64 (1Ith Cir. 1992), "inferences based upon speculation are not reasonable." Marshall
v. City a/Cape Coral, 797 F.2d 1555, 1559 (lIth Cir. 1986). Ifa reasonable fact finder evaluating
the evidence could draw more than one inference from the facts, and if that inference introduces a
genuine dispute over a material fact, the court should not grant summary judgment. Samples ex rei.

Samples v. City

0/ Atlanta, 846 F.2d

l328, l330 (1Ith Cir. 1998). However, if the nonmovant's

response consists of nothing "more than a repetition of his conclusional allegations," summary
judgment is not only proper, but required. Morris v. Ross, 663 F.2d 1032, 1034 (lIth Cir. 1981).

III.

ANALYSIS

A.

Count I - Copyright Infringement

Copyright protection inures in "original works of authorship fixed in any tangible medium
of expression," including photographs. 17 U.S.C. §§ 102(a), 102(a)(5). Generally, the owner of a
copyright has the exclusive rights to distribute or display the copyrighted work to the public. 17
U.S.C. §§ 106(2), 106(5). The initial ownership ofa copyrighted work vests in the author of the
work. 17 U.S.C. § 201(a). This ownership may be transferred "by any means of conveyance or by
operation oflaw." 17 U.S.C. § 201(d).
To establish copyright infringement, two elements must be shown: "( 1) ownership of a valid

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copyright, and (2) copying of constituent elements of the work that are original." Feist Publ 'ns, Inc.
v. Rural Tel. Servo Co., Inc., 499 U.S. 340,361 (1991). "[R]egistration is not a condition ofcopyright
protection." 17 U.S.C. § 408(a). Rather, copyright protection inures at "the moment an original idea
leaves the mind and finds expression in a tangible medium, be it words on a page, images on a
screen, or paint on a canvas." Kernel Records, 694 F.3d at 1301 (quoting La Resolana Architects,

PA

V.

Clay Realtors Angel Fire, 416 F.3d 1195, 1198 (10th Cir. 2005), abrogated in part by Reed

Elsevier, Inc.

V.

Muchnick, 130 S.Ct. 1237 (2010)). Registration is, however, a prerequisite to an

infringement action, but it may be obtained at any time during the copyright term. 17 U.S.C. §§
408(a), 411(a); see Hagendorfv. Brown, 699 F.2d 478,480 (9th Cir. 1983).
It is undisputed that Plaintiff (1) owns a valid and properly registered copyright in the

photograph, and (2) the alleged infringing posts copied constituent elements of the content that are
original. Defendants, however, deny reproducing the photograph and claim that various defenses
protect any use that may have occurred. Each allegedly infringing reproduction must be evaluated
to determine whether genuine disputes exist as to Defendants' responsibility for the use.

1.

Facebook Post 1

On May 19, 2011, Schriebvogel posted the photograph on his personal account on the
website Facebook.3 (See Dkt. 42-3 ~ 8; Dkt. 42-3 at 12-14.) Defendants do not dispute that this
Facebook account belonged to, and was controlled by, Schriebvogel, nor do they dispute that
Schriebvogel posted the photograph. In fact, Defendants concede that "they used the photograph
before it was registered and before this lawsuit was filed." (Dkt. 48 at 2.)

3Schriebvogel posted the content under his personal Facebook account for "Joe A. Schriebvogel" in an album
of photos titled "May 19,2011." (Dkt. 42-3 at 12-14.) As a result, the picture was available at mUltiple URLs on the
Facebook website, including http://www.facebook.com/joe.a.schriebvogel/photos. and the others listed in Exhibit C-I.

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2.

YouTube Videos by "gwbigcatdaddy" - Set 1

On June 27,2011, the user "gwbigcatdaddy" posted three videos on YouTube entitled "Saga
36 Carole Baskins staffkills animals," "Big Cat Rescue Saga 42 part 2 the real truth," and "Big Cat
Rescue Saga 42 part 3 the real truth," all of which contained the photograph.4 (See Dkt. 42-3 ~ 9;
Dkt. 42-3 at 15-16, 18, 20). Defendants admit that Schriebvogel posted videos on YouTube under
the user name "gwbigcatdaddy." (Dkt. 42-14 at 4.)

3.

YouTube Videos by "bigcatbullshit" - Set 1

On August 2, 2011, the user "bigcatbullshit" posted a video on Y ouTube entitled "Big Cat
Rescue's Double Standards.wmv" containing the photograph. s (Dkt. 42-3 ~ 10; Dkt. 42-3 at 26.)
Defendants deny responsibility for the "bigcatbullshit" user name and deny posting the video. (Dkt.
42-14 at 19-20.)
The individual responsible for the account with the user name "bigcatbullshit" used the email
address littlerickyexotic@yahoo.com, from the IP address 198.228.197.158, in Wynnewood,
Oklahoma. That individual was born on March 5, 1963. (Dkt. 42-16

~~

15, 17; Dkt. 42-21 at 6.)

Although Defendants access the Internet in Wynnewood (Dkt. 42-15 at 16), Plaintiff does not point
to any evidence that Defendants use the email address littlerickyexotic@yahoo.com or the IP address
198.228.197.158, or that Schriebvogel was born on March 5, 1963.6 Therefore, a genuine dispute

4The
videos
were
available
at http://www.youtube.com/watch?v=4vfv7jA3rYo.
http://www.youtube.com/watch?v=BBKTdFGJcxE&feature=mr_meh&list=PL2931907C82215, and
http://www.youtube.com!watch?v=BBKTdFGJcxE&feature=mr_meh&list=PL2931907C82215AD6&index=4&play
next=O, respectively.
SThe video was available at http://www.youtube.com/watch?v=r8e3rt2S3dA.
6Plaintiffargues that the email address "matches the name ofSchriebvogel' s pet monkey for which Schriebvogel
maintains a Facebook account." (Dkt. 42 at 8 n.11.) Without more, however, this allegation is insufficient to resolve the
dispute as to whether any of the Defendants control or use the email address. Plaintiff also states that Schriebvogel was
born on March 5, 1963. (Jd) Plaintiff, however, has not pointed to any pleading, document, or evidence showing when
Schriebvogel was born, or that the date of birth used to register the user name is genuine.

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of material fact exists as to whether Defendants control the Y ouTube user name "bigcatbullshit."

4.

Vimeo Videos by "Joe Exotic" - Set 1

On August 6, 2011, the user "Joe Exotic" posted two videos on Vimeo entitled "Big Cat
Rescue Killing Innocent Bunnies for entertainment" and "Big Cat Rescue and the lies to cover up,"
both of which contained the photograph. 7 (Dkt. 42-3 ~ 11; Dkt. 42-4 at 1,4; Dkt. 42-23 at 1-2.)
Defendants deny responsibility for the "Joe Exotic" user name. (See Dkt. 42 at 8 n.12; Dkt.
42-15 at 6-7.) This denial, however, is contradicted by Schriebvogel' s deposition testimony, in which
he admits to controlling the "Joe Exotic" account. (Dkt. 42-2 at 77:9-12,95:17-19.) Plaintiff also
presented evidence associating "Joe Exotic" with the email addressjoe_exotic@yahoo.comand the
IP address 50.30.99.173. 8 (See Dkt. 42-17 at 5, 9; Dkt. 42-19 at 49.) Schriebvogel testified that he
uses that email address (Dkt. 42-2 at 90:21-25), and Defendants admit they are the registered users
of that IP address (Dkt. 42-15 at 15). Considering this undisputed evidence, there is no genuine
dispute that Schriebvogel had control of the "Joe Exotic" account and posted the video. See Kernel

Records, 694 F.3d at 1300 ("A genuine factual dispute exists only if a reasonable fact-finder 'could
find by a preponderance ofthe evidence that the [non-movant] is entitled to a verdict. "').

5.

YouTube Videos by "gwbigcatdaddy" - Set 2

On August 22 and 23, 2011, the user "gwbigcatdaddy" uploaded two videos to YouTube

7Tbe videos were available at http://www.vimeo.coml27377951, and http://www.vimeo.coml27376397.
8The "user 10" associated with the "Joe Exotic" user name is 8027564. (Dkt. 42-17 at 5.) The account
associated with the user 10 8027564 was accessed on August 13,2011 from the IP address 50.30.99.173 (Dkt. 42-17
at 9). And the "Joe Exotic" user name emailed Vimeo support staff from the joe_exotic@yahoo.com email address to
complain that "Carole Baskin with Big Cat Rescue has filed many False claims to the stories and content that I have
done." (Dkt. 42-19 at 49 (emphasis adeed).)

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entitled "Carole Baskin Saga 39," and "Save the rabbits from BCR,,,9 which contained the
photograph. (Dkt. 42-3

~

12; Dkt. 42-4 at 5.) Schriebvogel admitted to posting both videos to

YouTube. (See Dkt. 42-2 at 60:15-23 1°; Dkt. 42-4 at 5; Dkt. 42-14 at 1.)

6.

Capwiz.com

Plaintiff s Motion alleges that Defendants uploaded infringing content on two web pages
hosted by capwiz.com, II but Plaintiff has not presented any evidence that the photograph was
uploaded by any of the Defendants. The screen shots in evidence have a background that appears to
belong to OW Exotic (see Dkt. 42-4 at 8), but Plaintiff does not argue, nor can the inference properly
be drawn, that this background eliminates any dispute as to whether Defendants posted the
photograph to this website.

7.

Live/eak.com

On August 26,2011, the user "Joe Exotic" uploaded to the website Liveleak.com a video
entitled "Big Cat Rescue, living double standards," which contained the photograph. 12 (Dkt. 42-3 ~
14; Dkt. 42-4 at 9-1 0.) Although record evidence demonstrates that the video was uploaded from the
IP address 50.30.99.173 (Dkt. 42-16 ~ 7-8; Dkt. 42-16 at 39), which Defendants control (Dkt. 42-15

9 The
videos were available at
http://www.youtube.comlwatch?v=MFavfrgWMky.

10

Q.

A.
Q.

A.

Q.
A.

http://www.youtube.com/watch?v=4j07xiU_zss.

and

Do you recognize the Saga 39, "Killing Innocent Rabbits"?
Could be.
Could that be one of the videos you posted on YouTube?
Could be.
Okay. And that's one of the videos that incorporated the photograph which is Exhibit I.
Correct?
Yes.

Il http://capwiz.comlgwparklissues/alertl?alertid=S2249S01 and
http://capwiz.comlgwparklissues/alertl?aJertid=S2248SII.

12Tbe video was available at http://www.liveleak.comlview?i=3e713143692IS.

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at 15), Defendants deny responsibility for the user name and for posting the video. (Dkt. 42-14 at 19;
Dkt. 42-15 at 7.) Plaintiffs have not pointed to any other evidence that directly contradicts these
denials, so an inference must be drawn that even though Defendants are the "registered users" of the
IP address, an individual unassociated with Defendants could have posted the content from a
computer utilizing the IP address. 13 Therefore, a genuine dispute exists as to whether Defendants
posted the content on Liveleak under the user name "Joe Exotic" in the video "Big Cat Rescue,
living double standards."
8.

Videos. com

There is a genuine dispute of material fact as to whether Defendants posted the video "Big
Cat Rescue, living double standards" on August 27, 2011, which contained the content, on
Videos. com, for the same reasons there is a genuine dispute as to whether Defendants posted the
video on Liveleak.

9.

YouTube Videos by "suebass2011" - Set 1

From August 28,2011 to September 4,2011, the user "suebass2011" uploaded five videos
to YouTube containing the photograph. 14 (See Dkt. 42-3 ~~ 15,16; Dkt. 42-4 at 14-19.) Defendants
deny responsibility for this user name and for posting the videos (Dkt. 42-15 at 16), and
Schriebvogel testified that he is not responsible for the account. (Dkt. 42-2 at 67:7-71: 1.) Plaintiff

13 See generally In re BitTorrent Adult Film Copyright Infringement Cases, Civil Action Nos. 113995(DRH)(GRB), 12-1 147(JS)(GRB), 12-1150(LDW)(GRB), 12-1154(ADS)(GRB), 2012 WL 1570765, at *3
(E.D.N.Y. May 1,2012) ("[T]he assumption that the person who pays for Internet access at a given location is the same
individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over
time. An IP address provides only the location at which one of any number of computer devices may be deployed, much
like a telephone number can be used for any number oftelephones .... Thus, it is no more likely that the subscriber to
an IP address carried out a particular computer function ... than to sayan individual who pays the telephone bill made
a specific telephone call.").

14The videos were titled "Just what is Big Cat Rescue," "Big Cat Rescue Animal Lovers.wmv," "Carole Baskin
Saga 41 Busted," "Saga 45 Carole smuggles Bobcat Kittens," and "Carole Baskin Saga 48 The Contract."

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has presented evidence showing that the user name "suebass20 11" is associated with the e-mail
address suebass20 11 @gmail.com, and the date of birth the user entered when registering the user
name is March 5, 1963. 15 (Dkt. 42-21 at 8.) Discovery also revealed that the secondary e-mail
address associated with the user name is joe_exotic@yahoo.com, which belongs to Schriebvogel.
Despite the link between the e-mail address and Schriebvogel, Plaintiff has not overcome its initial
burden to demonstrate that there is no genuine dispute of material fact as to whether Defendants
posted videos on YouTube under the user name "suebass2011." Taking all inferences in favor of
Defendants, the circumstantial evidence of an unconfirmed date of birth in the same astrological sign
and a secondary e-mail address belonging to Schriebvogel does not eliminate all disputes of material
fact, especially in light ofSchriebvogel's deposition testimony denying responsibility.

10.

Traditional Circus Life Post 1

On September 6, 2011, a video entitled "Jeff Kramer of Big Cat Rescue of Tampa.wmv,"
which contained the photograph, was uploaded to the website "Traditional Circus Life." (Dkt. 42-3
~

17; Dkt. 42-5 at 1.) Plaintiff does not identify the evidence supporting the conclusion that

Defendants were responsible for creating or uploading this video. Because the district court is not
required to "parse the record" to locate evidence, Plaintiff has not met its burden.

11.

Facebook Post 2

On September 13, 2011, the photograph was posted on the Facebook page titled "Joe Exotic
Fan Page." (Dkt. 42-5 at 2.) Defendants admit that Schriebvogel created and used the Joe Exotic Fan
Page. (Dkt. 42-15 at 3.) This admission is sufficient to overcome Plaintiffs initial burden of

15Plaintiff argues that Schriebvogel' s testimony that he is a Pisces confmns that he created this user name with
his own personal information. That evidence, however, does not eliminate disputes of fact, particularly given the fact
that Plaintiff has failed to provide evidence demonstrating Schriebvogel's date of birth.

10

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demonstrating that no genuine disputes of material fact exist. Defendants have not addressed this
post in their response and present no evidence demonstrating that a dispute exists as to whether
Schriebvogel created the post and uploaded the content to Facebook.

12.

Wordpress

Defendants admit that Schriebvogel posted the photograph on six web pages hosted by
"Wordpress" around September 28,2011. 16 (See Dkt. 42-5 at 4-6,8-10; Dkt. 42-15 at 3, 7-9.)

13.

Animalsluts.org

Defendants admit that Schriebvogel posted the photograph on the website animalsluts.org
during October 2011Y (Dkt. 42-5 at 13; Dkt. 42-15 at 6-7; Dkt. 58 at 7.)

14.

Buzznet

In October 2011, the photograph was posted on the ''joeexotic'' user page ofbuzznet.com. 18
(Dkt. 42-5 at 14.) The evidence shows that the user "joeexotic" lives in Wynnewood, Oklahoma, is
male, is a Pisces, and lists http://www.911animalabuse.org as a related website - all characteristics
shared by Schriebvogel. (See Dkt. 42-5 at 14.) Plaintiff further argues that Defendants must be

16The content was posted on the following URLs hosted by Wordpress:
I.
2.
3.
4.
5.
6.

http://carolelbaskin.wordpress.com
http://carolelbaskin.wordpress.comlbcr-staff/
http://carolelbaskin.wordpress.comlthe-truth
http://carolelbaskin.fiIes.wordpress.coml20 III09/bcr-rabbit-blog.jpg
http://carolelbaskin.wordpress.comldouble-standards
http://carolelbaskin.fiIes.wordpress.coml2011/09/orig-1428743.jpg

Although Plaintiff does not present a screen shot of the content hosted on the URL
http://carolelbaskin.wordpress.comlbcr-stafti', Defendants admit that Schriebvogel posted the content on this particular
URL. (See Dkt. 42-15 at 3.)
17Defendants' argument in their response to the Motion for Summary Judgment that Schriebvogel "was not sure
the photograph was put on animalsluts.com" is not supported by the cited deposition testimony, and is contradicted by
every other piece of evidence submitted by Plaintiff, as well as testimony given by Schriebvogel.
18The content was available at http://joeexotic.buzznet.comluser/video/4912741 Icarole-baskin-saga-48-contract.

11

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responsible for this page because the "Joe Exotic" user name is frequently used by Defendants, and
because the video is titled "Carole Baskin Saga 48," and Schriebvogel testified to making 57 "sagas"
about Carole Baskin. In his deposition, however, Schriebvogel testified that he has never heard of
''joeexotic'' on Buzznet and that he did not put the photograph on Buzznet. (Dkt. 42-2 at 49:8-20.)
Although the evidence implicates Schriebvogel, especially the listing of911animalabuse.org, which
Schriebvogel created (Dkt. 42-2 at 49:6-7, 53: 18-21), his direct testimony denying that he posted the
content prevents summary judgment. See Price v. Time, Inc., 416 F.3d 1327, 1345 (lIth Cir. 2005)
("Courts routinely and properly deny summary judgment on the basis of a party's sworn testimony
even though it is self-serving.").

15.

911animalabuse.org

Schriebvogel admits he created 911animalabuse.org and posted the photograph to that
website in October 2011. 19 (Dkt. 42-5 at 17; Dkt. 42-2 at 49:6-7,53:18-25; Dkt. 58 at 7.)

16.

Blogspot Post 1

Also in October 2011, the photograph was uploaded on the website previously known as
"Blogspot.,,20 (Dkt. 42-6 at 1) Defendants deny responsibility for this web page. (Dkt. 42-2 at 55:512; Dkt. 42-14 at 12-13.) The only evidence presented by Plaintiff to associate Defendants with the
post is the e-mail addressassociatedwiththecontent(suebass2011@gmail.com). which is
insufficient to demonstrate the absence of genuine disputes of material fact.

19The photograph was available at http://www.91Ianimalabuse.orglbig-cat-rescuelbunnies-slaughtered-atbigcatrescue-tlI. Defendants' argument in their response to the Motion for Summary Judgment that Schriebvogel "was
not sure ifhe put the photograph on 911animalabuse.org" is not supported by the cited deposition testimony, and is
contradicted by every other piece of evidence submitted by Plaintiff, as well as other testimony given by Schriebvogel.

20The photograph was available at http://bigcatrescueIies.blogspot.coml20 11106/subject-23-needless-slaughterof.html, and was available as late as March 29,2012. (See Dkt. 42-6 at 1; Dkt. 42-3

12

~

23.)

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17.

Traditional Circus Life Post 2

Between October and December 2011, two more videos containing the photograph were
posted to the Traditional Circus Life by the users "joeexotic" and 'joeexotic (STAFF).,,21 (See Dkt.
42-7 at 1-7.) The first video contains the caption "Jeff Kramers bed time story 'By Joe Exotic.'"
(Dkt. 42-7 at 4.) Defendants deny responsibility for these accounts. (Dkt. 42-15 at 4-5.)
Schriebvogel's testimony, however, reveals that the "joeexotic" user name is controlled by Shawn
Bailey, and that Bailey posted one video containing the photograph on the website "for"
Schriebvogel, though itis unclear which one. (Dkt. 42-2 at 37: 17-25.) There is, therefore, no genuine
dispute of material fact that Schriebvogel created at least one video containing the photograph and
directed Bailey to post it.

18.

Facebook Post 3

In December 2011, the photograph was posted to the "Joe Exotic Fan Page" on Facebook.
(Dkt. 42-7 at 8.) Defendants admit that Schriebvogel created the Joe Exotic Fan Page and was
responsible for its content. (Dkt. 42-15 at 3.)

19.

Vimeo Videos - Set 2

On December 7, 2011, the user "Joe Schriebvogel" posted an untitled video on Vimeo
containing the photograph. 22 (Dkt. 42-7 at 9.) The user "Joe Schriebvogel" was established with the
email addressjoeexotic@yahoo.com. which Schriebvogel admits he controls and uses. (Dkt 42-2

21Although Plaintiff's motion separates mentions of the videos into three instances, it appears that only two
videos were posted, with the first posted twice and the second only once. The first video titled "J eff'Kramer (the bed time
story)" was posted on the main page of traditionalcircuslife.co.uk as well as the URL
http://traditionalcircuslife.co.ukIvideo/user/joeexotic ..The second video was titled "Carole Baskin Saga 39 killing inocent
rabbits," and was posted at the URL http://traditionalcircuslife.co.uk/video/007SKMN5G 1Y3/Carole-Baskin-Saga-39killing-inocent-rabbits.
22The video was available at http://vimeo.coml33346164.

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at 90:21-25.) Evidence also demonstrates that the " Joe Schriebvogel" account was accessed through
an IP address for which Defendants are the registered users.23 (Dkt. 42-15 at 15.) This is sufficient
to shift the burden to Defendants.
Defendants do not deny that Schriebvogel posted this video on Vimeo (Dkt. 42-14 at 7-8; see
Dkt. 42-2 at 45:17-23), butthey deny responsibility for the "Joe Schriebvogel" account. (Dkt. 42-15
at 8.) Despite some inconsistency,24 Schriebvogel ultimately testified that he is not responsible for
the "Joe Schriebvogel" account, creating a genuine dispute as to whether Schriebvogel or any of the
Defendants posted the this video on Vimeo.

20.

Blogspot Post 2

In January 2012, the photograph was posted on Blogspot again.25 (Dkt. 42-3 ~ 27; Dkt. 42-7
at 11.) Defendants deny responsibility for this post (Dkt. 42-14 at 13; Dkt. 42-2 at 54:21-55:12), and
Plaintiff has not presented any evidence demonstrating an absence of a dispute of material fact.

21.

JoeExotic.com

On March 21,2012, the photograph was posted at http://www.joeexotic.com/staffhtml. (Dkt.
42-3

~

28; Dkt. 42-8 at 1.) The parties agree that Defendants uploaded infringing content on the

website. (Dkt. 58 at 7.)

22.

YouTube Video by "Bigcatconspeircy"

23Vimeo's production reveals that the User ID 9555939 was accessed from the IP address 50.30.99.173. (Dkt.
42-17 at 27.) The ID 9555939 is associated with the "Joe Schriebvogel" account. (Dkt. 42-17 at 7.)
24See, e.g., Dkt. 42-2 at 44: 14-16 (when asked whether he agreed that the untitled video by "Joe Schriebvogel"
was available as of March 29, 2012, Schriebvogel replied, "1 don't buy that. ... Because she had my account shut down
last year."); Dkt. 45: 13-46: 1 (Schriebvogel fails to deny that he posted the video; instead, he demurs and states that he
does not recall whether he posted it, even when given the opportunity to fully deny responsibility for posting the video);
Dkt. 42-2 at 75: 16-17,77:9-12 (Schriebvogel testifies that he never used the "Joe Schriebvogel" or "Joe Exotic" accounts
on Vimeo, but almost immediately thereafter testifies that he had a Vimeo account with the user name "Joe Exotic").

25The photograph was available at http://bigcatrescuelies.blogspot.com.

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On August 27,2012, the user "Bigcatconspeircy" uploaded to YouTube a video entitled "Big
Cat Rescue Kills Bunnies," which contained the photograph. 26 (Dkt. 42-8 at 9.) Plaintiff presents
evidence that the e-mail addressassociatedwiththisusernameisjoeschriebvogel@gmail.com.
which Defendants admit is under Schriebvogel' s control. Defendants do not address this post or the
user name "Bigcatconspeircy." There is no dispute that Schriebvogel uploaded this video.

B.

Defenses to Copyright Infringement

As there is no dispute that Schriebvogel posted the photograph on the Internet twenty-one
times, Plaintiff is entitled to judgment as a matter of law on the claim of copyright infringement
absent an applicable defense. To that end, Plaintiff also seeks summary judgment on the defenses
listed in Defendants' Amended Answer and Affirmative Defenses: (1) failure to state a claim; (2)
estoppel due to unclean hands; (3) fair use; (4) misuse of copyright; (5) failure to join necessary
parties; and (6) the harm was caused by others. (See Dkt. 22.) Defenses (1), (5), and (6) are not
affirmative defenses. See Leedom Mgmt. Group, Inc. v. Perlmutter, No. 8:11-cv-2108-T-33TBM,
2012 WL 1883765, at *6-7 (M.D. Fla. May 22, 2012). Defense (2) is a combination of the
affirmative defenses of estoppel and unclean hands, which will be addressed separately.

1.

Standard

On a plaintiff s motion for summary judgment, the defendant bears the initial burden of
showing that an affirmative defense is applicable. Int 'I Schs. Servs., Inc. v. AA UG Ins. Co., Ltd., No.
1O-62115-CIV, 2012 WL 5635590, at *8 (S.D. Fla. Nov. 15, 2012). The defendant "may not
[simply] depend upon the mere allegations or defenses in his Answer to counter [a motion for
summary judgment]." Keybank Nat 'I Ass 'n v. Willoughby, No. 2:09-cv-662-FtM-SPC, 2010 WL

26 The

video was available at http://www.youtube.comlwatch?v=AAK7v86QDbU&feature=plcp.

15

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3212086, at *3 (M.D. Fla. Aug. 12,2010) (citing Matsushita Elec. Indus. Co. Ltd v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986». The plaintiff may obtain summary judgment "simply by
establishing the nonexistence of a genuine issue of material fact as to any essential element of a nonmoving party's claim or affirmative defense." Gomez v. Virtual Imaging Servs., Inc., No. 11-22068,
2012 WL 1933337, at *3 (S.D. Fla. Apr. 3,2012) (citing Celotex, 477 U.S. at 324). This burden may
be discharged by showing that there is an absence of evidence supporting the defense. Id

2.

Estoppel

In copyright infringement cases, the infringer may assert the defense of estoppel by
demonstrating "'(1) the copyright owner knew the facts of the infringement, (2) the copyright owner
intended its conduct to be acted upon or the copyright owner acted such that the alleged infringer has
a right to believe it was so intended, (3) the alleged infringer is ignorant of the true facts, and (4) the
alleged infringer relies on the copyright owner's conduct to his detriment.'" Thornton v. J Jargon

Co., 580 F. Supp. 2d 1261, 1282 (M.D. Fla. 2008) (quoting HGI Assocs., Inc. v. Wetmore Printing
Co., 427 F.3d 867, 875 (1Ith Cir. 2005».
Plaintiff argues correctly that there is no evidence supporting the defense of estoppel. Indeed,
Defendants have not presented any evidence that Plaintiff knew about Schriebvogel' s infringement,
that Plaintiff intended Schriebvogel to act based on its conduct, that Schriebvogel is ignorant of the
facts surrounding his infringements, or that Schriebvogel relied on Plaintiff s conduct to his own
detriment. Plaintiffis therefore entitled to summary judgment on the affirmative defense of estoppel.

3.

Unclean Hands

To prevail on the defense of unclean hands, the infringer must demonstrate "(1) Plaintiffs
alleged wrongdoing is directly related to the claim against which it is asserted; and (2) Defendants
were personally injured by Plaintiffs conduct." Thornton, 580 F. Supp. 2d at 1283 (citing Calloway
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v. Partners Nat 'I Health Plans, 986 F.2d 446, 450-51 (11th Cir. 1993); Mitchell Bros. Film Group

v. Cinema Adult Theater, 604 F.2d 852,863 (5th Cir. 1979». Defendants have likewise failed to
develop any facts supporting the defense of unclean hands. There is no evidence in the record that
Plaintiff committed any wrongdoing, or that Schriebvogel was harmed by any of Plaintiff s conduct.
Plaintiff is therefore entitled to summary judgment on the affirmative defense of unclean hands.

4.

Fair Use

The fair use of a copyrighted work "for purposes such as criticism, news reporting, teaching
... , scholarship, or research, is not an infringement of copyright." 17 U.S.C. § 107. In determining
whether a certain use was fair, courts consider "(1) the purpose and character ofthe 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." Id. Fair use analysis "must always be tailored to the individual case." Harper

& Row Publishers, Inc. v. Nation Enter. , 471 U.S. 539, 552-53 (1985). "Where material facts are not
in dispute, fair use is appropriately decided on summary judgment." Mattei, Inc. v. Walking

Mountain Productions, 353 F.3d 792, 800 (9th Cir. 2003) (citing Harper & Row, 471 U.S. at 560);
see Thornton, 580 F. Supp. 2d at 1284. However, when material facts surrounding the defense
remain in dispute, summary judgment is not appropriate.
F acts concerning the purpose, character, and frequency of Defendants ' use ofthe photograph
remain in dispute.27 Summary judgment is therefore not appropriate.

27 For example, the facts are not settled as to whether Schriebvogel's use of the photograph was commercial as
opposed to non-profit, the degree to which Schriebvogel exploited the photograph for commercial gain, and the value,
if any, of the copyrighted work. See Harper & Row, 471 U.S. at 562; Elvis Presley Enters., Inc. v. Passport Video, 349
F.3d 622, 627 (9th Cir. 2003).

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5.

Misuse of Copyright

The Eleventh Circuit has neither recognized nor rejected misuse as a defense for copyright
infringement suits. Telecom Tech. Servs. Inc. v. Rolm Co., 388 F.3d 820,831 (11th Cir. 2004); see
Bellsouth Adver. & Publ'g Corp. v. Donnelley Info. Publ'g, Inc., 933 F.2d 952, 960-61 (l1th Cir.
1991) (discussing misuse but refusing to extend its application to copyrights in that case), vacated
and rev'd 999 F.2d 1436 (l1th Cir. 1993). Its viability is of no moment, however, because
Defendants have not adduced any facts suggesting that Plaintiff used its copyright "to secure an
exclusive right or limited monopoly not granted by the [Copyright] Office and which it is contrary
to public policy to grant." Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 792 (5th Cir. 1999)
(quoting Lasercomb, Am. Inc. v. Reynolds, 911 F.2d 970, 979 (4th Cir. 1990)). Even if copyright
misuse is applicable to a broader set of circumstances beyond anti-competitive behavior,28
Defendants have not presented any law or facts supporting such an extension, instead repeatedly
stating in a conclusory fashion that Plaintiff misused its copyright.
Absent any argument that the defense of misuse of copyright should be adopted and any facts
that Plaintiff misused its copyright, Defendants have not carried their burden to sustain the defense
through trial. Plaintiff is entitled to summary judgment on the affirmative defense of misuse of
copyright.

6.

License

Finally, Plaintiff argues that any defense based on a license must fail. License is an
affirmative defense to a claim for copyright infringement. Latimer v. Roaring Toyz, Inc., 601 F.3d
1224, 1235 (l1th Cir. 2010). Plaintiff is entitled to summary judgment because license was never

28As suggested in Home Design Servs., Inc. v. Hibiscus Homes ofFla., Inc., No. 6:03-cv-1860-0RL-19KRS,
2005 WL 3445522, at *11 (M.D. Fla. Dec. 14,2005).

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pled and is therefore waived. See Troxler v. Owens-Ill., Inc., 717 F.2d 530, 532 (lIth Cir. 1983)
("An affirmative defense not pleaded in the defendant's answer is waived."); cf Latimer, 601 F.3d
at 1240 (holding the "fair use" defense waived where not pled).

C.

Count II - Digital Millennium Copyright Act Violation

Section 512, Title 17, of the United States Code lays out a detailed process allowing a
copyright owner who observes infringing content on a website like Y ouTube to have the content
taken down. See Shropshire v. Canning, 809 F. Supp. 2d 1139, 1147 (N.D. Cal. 2011). Under the
statute, the copyright owner must send a written communication to the service provider identifying
the offending video and asserting under penalty of perjury that the sender is the copyright owner and
has a good faith belief that the video infringes the sender's copyright. See 17 U.S.C. § 512(c)(3);

Shropshire, 809 F. Supp. 2d at 1147. Upon notification, the service provider is excepted from
copyright liability if it removes or disables access to the content. See 17 U.S.C. §§ 512(c)(l)(C),
512(d)(3).
After the copyright owner submits the written notification to the service provider, and the
service provider notifies the user of the allegedly infringing content, the user may submit a "counter
notification" under the penalty of perjury "that the subscriber has a good faith beliefthat the material
was removed or disabled as a result of mistake or misidentification of the material to be removed
or disabled." 17 U.S.C. § 512(g)(3). Any person who "knowingly materially misrepresents" that the
content "was removed or disabled by mistake or misidentification" is liable for any damages,
including costs and attorneys' fees, incurred by the copyright owner or service provider. 17 U.S.C.

§ 512(t).
Plaintiff argues that Defendants submitted false counter-notifications under § 512(g)(3), and

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that Defendants knew the counter-notifications were false when they were submitted. The evidence
submitted by Plaintiff demonstrates that genuine disputes exist as to whether any of the Defendants
"knowingly" misrepresented facts. Plaintiff, therefore, is not entitled to summary judgment on Count

II.
CONCLUSION

There is no dispute that Plaintiff owns a valid copyright in the photograph and that Defendant
Schriebvogel was responsible for copying the constituent parts of the photograph and posting it in
videos and on websites twenty-one times. The parties agree that Schriebvogel undertook this conduct
individually and on behalf ofGW Exotic. (Dkt. 58 at 7.) Nevertheless, genuine disputes of material
fact remain as to exactly how many times Schriebvogel posted the photograph, whether the use of
the photograph wxas "fair," and whether Defendants knowingly misrepresented the status of
Plaintiffs copyright in their DMCA counter-notifications. Accordingly,
1) Plaintiffs Motion for Summary Judgment (Dkt. 42) is GRANTED in part and DENIED

in part.
2) Plaintiff is entitled to partial summary judgment establishing that Defendants Joe
Schriebvogel and G. W. Exotic Memorial Animal Foundation reproduced the copyrighted photograph
on the following occasions:
a. May 19,2011, once on Schriebvogel's personal Facebook page;
b. June 27,2011, in three videos uploaded on YouTube by the user "gwbigcatdaddy";
c. August 6,2011, in two videos uploaded on Vimeo by the user "Joe Exotic";
d. August 22 and 23, 2011, in two videos uploaded on YouTube by the user
"gwbigcatdaddy";

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e. September 13,2011, on the "Joe Exotic Fan Page" on Facebook;
f. September 28, 2011, on six web pages hosted by Wordpress;
g. During October 2011, once on animalsluts.org and 911animalabuse.org;
h. Between October and December 2011, once on traditionalcircuslife.co.uk;
i. During December 2011, once on the "Joe Exotic Fan Page" on Facebook;
j. On March 21,2012, onjoeexotic.com; and
k. August 27, 2012, in a video uploaded on YouTube by the user "Bigcatconspeircy."
3) Plaintiff is entitled to summary judgment on the affirmative defenses of estoppel, unclean
hands, misuse of copyright, and license.
4) In all other respects, Plaintiff is not entitled to summary judgment.
DONE AND ORDERED in chambers this

Copies to:
Counsel of Record

21

/5 ~day

of January, 2013.