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Big Cat Rescue Corp. v. Big Cat Rescue Entm't Grp., Inc. - No. 8:11-cv-02014-JDW-TBM, 2013 U.S. Dist. LEXIS 195597 (M.D. Fla. Jan. 15, 2013)


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.'"


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 (Big Cat). Big Cat registered the photograph and holds a valid copyright as of August 25, 2011. Big Cat alleged 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-2011 (before registration) and began distributing it on the Internet. After discovering the reproductions, Big Cat provided notifications of Defendants' activity under the Digital Millennium Copyright Act (DMCA), 17 U.S.C.S. § 512, which prompted service providers to remove the photograph or videos containing the photograph. Defendants provided counter notifications in response to YouTube's removal of some videos, asserting under penalty of perjury that they were removed in error. Big Cat filed suit  and Defendants waived service. On September 7, 2012, Big Cat was granted leave to file a Supplemental Amended Complaint to add alleged instances of copyright infringement, which was filed on September 8, 2012. Count I of the Supplemental Amended Complaint sought relief under 17 U.S.C. §§ 501-505 for willful copyright infringement. Count II alleged that Defendants made false statements in the counter-notifications to YouTube in violation of the DMCA, 17 U.S.C.S. § 512(f). In their Amended Answer to the initial Complaint, Defendants denied the claims and assert six "affirmative defenses": (1) 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.


Was there sufficient evidence supporting the defense of estoppel?




There is no dispute that Big Cat owned 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 of GW Exotic. Nevertheless, genuine disputes of material fact remain as to exactly how many times Schriebvogel posted the photograph, whether the use of the photograph was "fair," and whether Defendants knowingly misrepresented the status of Big Cat's copyright in their DMCA counter-notifications.

The district court held that Big Cat argued correctly that there is no evidence supporting the defense of estoppel. Indeed, Defendants have not presented any evidence that Big Cat knew about Schriebvogel's infringement, that Big Cat intended Schriebvogel to act based on its conduct, that Schriebvogel is ignorant of the facts surrounding his infringements, or that Schriebvogel relied on Big Cat's conduct to his own detriment. Big Cat is therefore entitled to summary judgment on the affirmative defense of estoppel. Accordingly, Big Cat’s Motion for Summary Judgment is granted in part and denied in part. Big Cat is not entitled to summary judgment except on the affirmative defenses of estoppel, unclean hands, misuse of copyright, and license.

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