Global Weather Productions, LLC v. Wood Projections, Inc.

                UNITED STATES DISTRICT COURT                            
                SOUTHERN DISTRICT OF FLORIDA                            

                Case No. 24-cv-23528-BLOOM/Elfenbein                    

GLOBAL WEATHER PRODUCTIONS, LLC,                                          

   Plaintiff,                                                           

v.                                                                        

WOOD PROJECTIONS, INC.,                                                   

   Defendant.                                                           
_________________________/                                                

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT                         
   THIS CAUSE is before the Court upon Plaintiff Global Weather Productions’ First 
Motion for Partial Summary Judgment (“Plaintiff’s Motion”), ECF No. [45], and Defendant Wood 
Productions, Inc.’s Motion for Summary Judgment (“Defendant’s Motion”), ECF No. [46], each 
filed on November 5, 2025. Defendant filed a Response to Plaintiff’s Motion, ECF No. [52], to 
which Plaintiff filed a Reply. ECF No. [56]. Plaintiff filed a Response to Defendant’s Motion, ECF 
No. [49], to which Defendant filed a Reply. ECF No. [57]. The Court has reviewed the record, the 
supporting and opposing submissions,1 the applicable law, and is otherwise fully advised. For the 
reasons that follow, the Motions are denied.                              
I.   BACKGROUND                                                         

   On September 13, 2024, Plaintiff filed a Complaint against Defendant, alleging Direct 
Copyright Infringement (Count I). ECF No. [1]. On April 4, 2025, Defendant filed its Answer to  
the Complaint and asserted eleven affirmative defenses: (1) fair use; (2) statute of limitations; (3) 

1 Both parties filed Statements of Material Facts with their respective Motions for Summary Judgment, ECF Nos. 
[45-15], [47], to which each party filed a Response, ECF Nos. [53], [50]. 
Plaintiff failed to state a claim; (4) laches, acquiescence, estoppel, or waiver; (5) the alleged 
copyright use was de minimis; (6) Defendant’s actions were not willful, but innocent; (7) Plaintiff 
has not suffered actual damages; (8) Defendant did not commercially exploit the video; (9) to the 
extent Plaintiff suffered any damages, they were caused by Plaintiff’s own act or omissions; (10) 

Plaintiff failed to mitigate damages; and (11) unclean hands. ECF No. [33].  
A.  Undisputed Facts                                                    

   The following facts are undisputed, unless otherwise noted:          

   Michael Brandon Clement (“Clement”) is a videographer and “storm chaser” by trade and 
is founder and owner of GWP. ECF No. [45-15] ¶ 1. Clement documents extreme weather 
phenomena through video capture of on-scene recordings and drone footage, putting himself into 
unpredictable situations that can result in significant bodily harm. Id. ¶ 2. On September 3, 2019, 
Clement published a video showing a helicopter view of the damage to the Abacos Islands in the 
Bahamas from Hurricane Dorian (“Video”). Id. ¶ 12. Clement selected the subject matter, timing, 
lighting, angle, perspective, depth, lens, and equipment used to capture the video recording. Id. ¶ 
15. The Video was created to document the extraordinary weather phenomenon for commercial 
purposes.  Id.  ¶  16.  Clement  registered  the  Video  with  the  United  States  Copyright  Office 
(“USCO”) on September 25, 2019, under Registration No. PA 2-214-139. Id. ¶ 18. In 2021, 
Clement filed a lawsuit stemming from copyright infringement conduct identified by Clement in 
2019, involving the same Video, albeit used by a party other than Defendant. ECF No. [47] ¶ 11. 
Clement assigned all rights in and to the Video to Plaintiff. ECF No. [45-15] ¶ 19. Plaintiff is the 
owner of the Video at issue in this case. Id. ¶ 3. Plaintiff uses a digital enforcement platform, 
provided by Meta Platforms, Inc., known as Rights Manager, to identify and flag potentially 
infringing uses of its copyrighted content across Facebook and Instagram. ECF Nos. [47] ¶ 8; ECF 
No. [50] ¶ 8.                                                             
   Defendant is a for-profit business entity,2 engaged in the business of the manufacture and 
sale of Display humidors, cigar lockers, walk-in humidors, Gondolas and fixtures. ECF No. [45-
15] ¶¶ 5-6. Defendant is the owner and operator of the social media account on Instagram with the 

name “@woodprojections” (the “Account”). Id. ¶ 8. On September 4, 2019, Defendant’s co-owner 
and Manager Fabiola Karolewicz displayed the Video on the Account. Id. ¶¶ 11, 22. The post 
included a caption3 stating: “So incredibly fortunate to be spared of this terrible hurricane, people 
wonder why we freak out when we hear about a hurricane on the way, we lost 2 days of work 
preparing  and  taking  stuff  down,  but  this  is  exactly  why!  #dejavu  #wesurvivedandrew 
#hurricanedorian #luckyus” ECF No. [47] at 3. An excerpt of the Video, which was included in 
the post, was 36 seconds long and contained a watermark to an NBC news affiliate. ECF Nos. [47] 
¶¶ 2, 6; [50] ¶¶ 2, 6. Neither Clement nor Plaintiff ever authorized Defendant to use the Video on 
the Account. ECF No. [45-15] ¶ 28.                                        

B.  Disputed Facts                                                      

   The following facts are disputed unless otherwise noted:             
   Plaintiff  alleges  that  it  first  became  aware  that  its  Video  was  being  displayed  on 
Defendant’s Account in 2022. ECF No. [45-15] ¶ 21. Defendant disputes this to the extent Plaintiff 
“knew or, with reasonable diligence, should have known, of Defendant’s alleged use of Plaintiff’s 
Video, prior to 2022.” ECF No. [53] ¶ 21. Defendant alleges that Plaintiff “uses a digital 

2 Defendant disputes this fact solely to the extent “that Defendant did not profit from the allegedly infringing 
use of Plaintiff’s Video.” ECF No. [53] ¶ 5. Defendant does not otherwise dispute that it is a for-profit business 
entity.                                                                   
3 Defendant describes the caption as “expressing empathy and gratitude that South Florida had been spared the 
storm.” ECF No. [47] ¶ 2. Plaintiff disputes this description “to the extent the text accompanying the display 
references anyone other than Defendant.” ECF No. [50] ¶ 2. However, Plaintiff does not appear to dispute the 
content of the caption since Plaintiff attaches the post, including the caption, as an exhibit. See ECF No. [45-8].  
enforcement platform, known as Rights Manager, to identify and flag potentially infringing uses 
of its copyrighted content across various platforms, including Instagram.” ECF No. [47] ¶ 8. 
Although it is undisputed that “Plaintiff uses Meta’[s] Rights Manager to identify displays of its 
content[,]” Plaintiff disputes the “impli[cation] that Meta’s Rights Manager is Plaintiff’s own 

‘digital enforcement platform.’” ECF No. [50] ¶ 8.                        
   Plaintiff states that Defendant uses its Account to feature its products and sales. ECF No. 
[45-15] ¶ 9. Defendant disputes this “to the extent that the @woodsprojections Instragram [sic] 
account is primarily used to share[] community, family, and woodworking content, and is not 
operated  for  commercial  purposes.”  ECF  No.  [53]  ¶  9.  Defendant  states  the  post  was  not 
monetized, not used for paid advertising, and did not include any commercial promotion or links. 
ECF No. [47] ¶ 3. Plaintiff disputes this, to the extent “the homepage for the @woodprojections 
social media account includes a direct link to Defendant’s associated website which Defendant 
uses to advertise and promote the sale of its products.” ECF No. [50] ¶ 3. Defendant states it “did 
not receive any monetary gain, leads, or inquiries related to the post.” ECF No. [47] ¶ 5. Plaintiff 

disputes this, to the extent “Defendant received valuable public exposure from the use of Plaintiff’s 
work and further received a monetary benefit in not paying a license fee for the use of said work.” 
ECF No. [50] ¶ 5. Defendant states the post “was shared using Instagram’s in-app reposting 
functionality and was not downloaded or re-uploaded.” ECF No. [47] ¶ 20. Plaintiff disputes this 
“as Defendant has admitted it does not know where it acquired Plaintiff’s Video from and asserted 
it ‘may have originated from a third-party new[s] site or user-generated platform and Defendant is 
unable to identify a specific URL from which the video clip was originally accessed.” ECF No. 
[50] ¶ 20 (quoting ECF Nos. [45-13] at 4-5). Plaintiff also disputes Defendant’s statement that the 
post was shared “using Instagram’s in-app reposting functionality” because “Instagram’s in-app 
repost function was not available to Defendant in 2019, and . . . . Ms. Karolewicz testified that she 
‘created’ the subject post which was ‘published’ on the Account.” Id. (citing ECF No. [45-14] at 
34:16-25).                                                                

C.  Cross-Motions for Summary Judgment                                  

   Plaintiff’s Motion seeks summary judgment “on [the] issue of liability for direct copyright 
infringement[.]” ECF No. [45-16] at 5. Plaintiff argues that, to establish a prima facie case for 
direct copyright infringement, it must show that (1) it owns a valid copyright and (2) that 
Defendant violated one or more of its rights under the Copyright Act, both of which have been 
satisfied. Id. Defendant responds that Plaintiff’s Motion should be denied because (1) the claim is 
barred by the statute of limitations; and (2) the claim is barred by the doctrine of fair use. ECF No. 
[52]. Plaintiff replies that (1) Defendant’s infringement was not a repost; (2) Defendant failed to 
raise any question of fact to support its contention that Plaintiff’s claims are time-barred; and (3) 
Defendant’s infringement is not protected by the fair use doctrine. ECF No. [56].  
   Defendant’s Motion argues (1) Plaintiff’s claim is barred by the statute of limitations; (2) 
fair use prevents Plaintiff from establishing liability on its claim; (3) Plaintiff has not suffered any 
damages; (4) to the extent Plaintiff seeks statutory damages, the infringement was innocent; and 
(5) Plaintiff’s claim fails under the doctrine of unclean hands. ECF No, [46]. Plaintiff responds 
that (1) the claim is not barred by the statute of limitations; (2) the fair use factors do not favor a 
finding that Defendant’s secondary use was fair use; (3) Plaintiff has suffered damages; (4) 

Defendant is not an innocent infringer; and (5) the unclean hands doctrine does not apply. ECF 
No. [49]. Defendant replies reaffirming for the reasons stated in the Motion. ECF No. [57].  
II.  LEGAL STANDARD                                                     

   A court may grant a motion for summary judgment “if the movant shows that there is no 
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 
Fed. R. Civ. P. 56(a). In making this determination, the Court construes the evidence in the light 
most favorable to the non-moving party. Butler v. Gualtieri, 

41 F.4th 1329, 1334

 (11th Cir. 2022). 
“Summary judgment may be inappropriate even where the parties agree on the basic facts, but 
disagree about the inferences that should be drawn from these facts.” 

Id.

 (citing Lighting Fixture 
& Elec. Supply Co. v. Continental Ins. Co., 

420 F.2d 1211, 1213

 (5th Cir. 1969)). 
    “The moving party bears ‘the initial responsibility of informing the . . . court of the basis 
for  its  motion,  and  identifying  those  portions  of  the  pleadings,  depositions,  answers  to 
interrogatories, and admissions on file, together with the affidavits, if any, which it believes 
demonstrate the absence of a genuine issue of material fact.’” Hickson Corp. v. N. Crossarm Co., 

357 F.3d 1256, 1260

 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 

477 U.S. 317, 323

 (1986)). 
“A factual dispute is ‘material’ if it would affect the outcome of the suit under the governing law, 

and ‘genuine’ if a reasonable trier of fact could return judgment for the non-moving party.” 
Miccosukee Tribe of Indians of Fla. v. United States, 

516 F.3d 1235, 1243

 (11th Cir. 2008) (citing 
Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 247-48

 (1986)). “Once a moving party has 
sufficiently supported its motion for summary judgment, the non-moving party must come forward 
with significant, probative evidence demonstrating the existence of a triable issue of fact.” Chanel, 
Inc. v. Italian Activewear of Fla., Inc., 

931 F.2d 1472

, 1477 (11th Cir. 1991). At that juncture, “the 
nonmoving party is required to ‘go beyond the pleadings’ and present competent evidence 
designating ‘specific facts showing that there is a genuine issue for trial.’” United States v. 
$183,791.00, 

391 F. App’x 791, 794

 (11th Cir. 2010) (quoting Celotex, 

477 U.S. at 324

). 
   Where the non-movant would bear the burden of proof at trial, “the moving party is not 
required to support its motion with affidavits or other similar material negating the opponent’s 
claim in order to discharge this initial responsibility.” Fitzpatrick v. City of Atlanta, 

2 F.3d 1112

, 
1115-16 (11th Cir. 1993) (quoting United States v. Four Parcels of Real Prop. in Green & 

Tuscaloosa Cntys. in the State of Ala., 

941 F.2d 1428

, 1437–38 (11th Cir. 1991)). “Instead, the 
moving party simply may show . . . that there is an absence of evidence to support the non-moving 
party’s case . . . . ” 

Id.

 (quoting Four Parcels of Real Prop., 941 F.2d at 1437–38). However, “[o]n 
a plaintiff’s motion for summary judgment, “the defendant bears the initial burden of showing that 
the affirmative defense is applicable.” Naval Logistic, Inc. v. M/V Fam. Time, No. 23-22379-CIV, 

2024 WL 3691535

, at *3 (S.D. Fla. Aug. 6, 2024) (quoting Off. of Thrift Supervision v. Paul, 

985 F. Supp. 1465, 1470

 (S.D. Fla. 1997)).                                    
   At the summary judgment stage, the court “may not weigh conflicting evidence to resolve 
disputed factual issues[.]” Torres v. Rock & River Food Inc., 

244 F. Supp. 3d 1320, 1327

 (S.D. 
Fla. 2016) (quoting Skop v. City of Atlanta, Ga., 

485 F.3d 1130, 1140

 (11th Cir. 2007)). However, 

the mere existence “of some factual disputes between litigants will not defeat an otherwise properly 
grounded summary judgment motion[.]” 

Id.

                                  
   “When evaluating cross-motions for summary judgment,  the  Court  analyzes  each 
individual motion on its own merits and thus views the facts on each motion in the light most 
favorable to the respective nonmovant.” Adega v. State Farm Fire & Cas. Ins. Co., No. 07-cv-
20696, 

2009 WL 3387689

, at *3 (S.D. Fla. Oct. 16, 2009). “Cross-motions for summary judgment 
will not, in themselves, warrant the court in granting summary judgment unless one of the parties 
is entitled to judgment as a matter of law on facts that are not genuinely disputed.” Purcell v. City 
of Fort Lauderdale, 

753 F. Supp. 3d 1308

, 1324 (S.D. Fla. 2024) (quoting United States v. Oakley, 

744 F.2d 1553, 1555

 (11th Cir. 1984)).                                    
III.  DISCUSSION                                                        
   To establish a prima facie case of copyright infringement, “two elements must be proven: 

(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are 
original.” Latimer v. Roaring Toyz, Inc., 

601 F.3d 1224, 1232-33

 (11th Cir. 2010) (quoting Feist 
Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 

499 U.S. 340, 361

 (1991)). “[T]he certificate of a 
registration made before or within five years after first publication of the work shall constitute 
prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” 

17 U.S.C. § 410

(c).                                                          
   It is undisputed that Clement registered the Video with the USCO on September 15, 2019 
and assigned all rights in and to the Video to Plaintiff. ECF No. [45-15] ¶¶ 18-19. Plaintiff attaches 
the Certificate of Registration. ECF No. [45-4]. Defendant displayed the Video on its Account 
without a license. Id. ¶¶ 22, 23. Therefore, there is no dispute that Plaintiff has established a prima 

facie case of copyright infringement.                                     
   Because there is no dispute that Plaintiff has established a prima facie case of copyright 
infringement, to preclude the entry of summary judgment, Defendant must first show that its 
statute of limitations or fair use affirmative defense4 is applicable. See Philadelphia Indem. Ins. 
Co. v. V. Eng’g & Consulting Corp., No. 20-CV-24299, 

2021 WL 4709754

, at *4 (S.D. Fla. Oct. 
8, 2021) (granting plaintiff’s motion for summary judgment where defendant asserted numerous 
affirmative defenses, but “failed to show that any such defenses are applicable in this case”). In 
order to show that an affirmative defense is applicable, “[t]he defending party must rely on or 


4 In its Response, Defendant only references its statute of limitations and fair use affirmative defenses. ECF No. 
[52].                                                                     
submit record evidence in support of the purported affirmative defenses to create a genuine issue 
of material fact preventing the entry of summary judgment.” United States v. Marder, 

208 F. Supp. 3d 1296, 1318

 (S.D. Fla. 2016) (quoting Meth Lab Cleanup, LLC v. Spaulding Decon, LLC, No. 
8:14-cv-3129, 

2015 WL 4496193

, at *7 (M.D. Fla. July 23, 2015)).          

A.  Statute of Limitations                                              

   “The  Copyright  Act’s  statute  of  limitations  provides  that  ‘no  civil  action  shall  be 
maintained . . . unless it is commenced within three years after the claim accrued.’” Nealy v. 
Warner Chappell Music, Inc., 

60 F.4th 1325, 1330

 (11th Cir. 2023) (quoting 

17 U.S.C. § 507

(b)) 
(alteration adopted). The Eleventh Circuit recognizes two rules for determining the date on which 
a copyright claim accrues: “the discovery rule and the injury rule.” 

Id.

 “Under the discovery rule, 
a claim ‘accrues when the plaintiff learns, or should as a reasonable person have learned, that the 
defendant was violating his’ rights.” 

Id.

 (quoting Webster v. Dean Guitars, 

955 F.3d 1270, 1276

 
(11th Cir. 2020)). “Conversely, under the injury rule, a copyright plaintiff’s claim accrues when 
the  harm,  that  is,  the  infringement,  occurs,  no  matter  when  the  plaintiff  learns  of 
it.” 

Id.

 (citing Petrella v. Metro-Goldwyn-Mayer, Inc., 

572 U.S. 663, 670

 (2014)). The Eleventh 
Circuit5 has held that “a copyright plaintiff with a timely claim under the discovery rule may 
recover retrospective relief for infringement that occurred more than three years prior to the filing 
of the lawsuit.” Id. at 1334.                                             
   Under the injury rule, the three-year statute of limitations would have begun to run on 

September 4, 2019, when Defendant posted the Video. Because Plaintiff filed the instant action on 

5 The Court notes that “[t]o date, the Eleventh Circuit has not explicitly adopted either the discovery rule or the 
injury rule in the civil copyright infringement context. However, in recent decisions related to copyright ownership 
claims, the Eleventh Circuit has both applied the discovery rule and affirmed a district court's use of that rule.” Sci. 
Photo Libr. Ltd. v. Bell Performance, Inc., No. 6:23-cv-2302, 

2024 WL 3638006

, at *2 (M.D. Fla. Aug. 2, 2024) 
(citing Dean Guitars, 

955 F.3d at 1276

) (emphasis added). Additionally, “the Southern and Middle Districts of 
Florida have routinely applied the discovery rule in copyright infringement cases.” Id. at *3 (collecting cases). 
September 13, 2024, the claim would be barred under the injury rule. Therefore, if Plaintiff learned, 
or should as a reasonable person have learned, of the infringement before September 13, 2021, its 
claim would be barred by the statute of limitations. Nealy, 

60 F.4th at 1330

. In its Response, 
Defendant argues “there is no genuine dispute that Plaintiff’s claim is barred by the statute of 

limitations . . . because Plaintiff failed to bring suit within three years of when it reasonably should 
have discovered the alleged infringement[.]” ECF No. [52] at 3 (citing 

17 U.S.C. § 507

(b)). Even 
if the Court credited “Plaintiff’s assertion that it first learned of the repost of the Video on 
September 15, 2022, accrual under the discovery rule turns on when Plaintiff knew or, with 
reasonable diligence, should have known of the alleged infringement.” 

Id.

 at 4 (citing Psihoyos v. 
John Wiley & Sons, Inc., 

748 F.3d 120, 124-25

 (2d Cir. 2014) and William A. Graham Co. v. 
Haughey, 

568 F.3d 425, 438-39

 (3d Cir. 2009)).                            
   Plaintiff does not dispute that a three-year statute of limitations applies to its suit but argues 
that “Plaintiff did use the requisite degree of diligence but did not find Defendant’s unauthorized 
use.” ECF No. [56] at 8. Plaintiff argues that “Plaintiff’s date of actual discovery is its actual date 

of discovery and Defendant has pointed to nothing in the record to suggest otherwise.” 

Id.

 
However, Defendant points out that “Plaintiff’s Rule 30(b)(6) representative admitted that Plaintiff 
was actively monitoring its copyrights during 2018 and 2019 and that Plaintiff had previously filed 
a separate lawsuit involving the very same Video for ‘infringing’ conduct identified in October 
2019.” ECF No. [52] at 4 (citing ECF No. [46] at 6). Indeed, Clement, Plaintiff’s Rule 30(b)(6) 
representative, testified that he had been monitoring his copyrights “since 2018, 2019[.]” ECF No. 
[47-2] at 28:11-17. He also began using monitoring services, such as Rights Manager, “somewhere 
around 2018 when the system came out. They identified [Clement’s] page as being a page that was 
heavily infringed and offered it to [him] early on.” Id. at 28:4-10. Although Plaintiff notes that 
Clement testified Rights Manager only “sometimes works[,]” id. at 26:22-27:1, Clement also 
stated that “[b]ack in 2018, 2019, something like that through 2022, Rights Manager was actually 
pretty effective.” Id. at 27:13-15. Based on this conflicting testimony, Defendant has shown that 
the statute of limitations affirmative defense is applicable and it has demonstrated a genuine 

dispute of material fact as to when Plaintiff, with reasonable diligence, should have known of the 
alleged infringement. Therefore, Plaintiff’s Motion is denied.            
   To the extent Defendant argues that its Motion should be granted because there is no 
genuine dispute of material fact that the statute of limitations bars Plaintiff’s suit, Defendant’s 
Motion is denied for the same reason that Plaintiff’s Motion is denied. There is a genuine dispute 
of material fact as to whether, with reasonable diligence, Plaintiff should have discovered the 
infringement. Defendant argues that “[c]ourts applying the discovery rule look to whether the 
plaintiff  exercised  reasonable  diligence  and  whether  ‘storm  warnings’  triggered  a  duty  to 
investigate.” ECF No. [46] at 7 (citing Psihoyos, 

748 F.3d at 124

-25 and Haughey, 

568 F.3d at 438-39

). Specifically, Defendant argues that Plaintiff “filed a copyright claim in October 2019 

involving the very same video . . . confirming that it was focused on that work and related uses 
during the relevant period.” ECF No. [46] at 8. Therefore, “[t]hat contemporaneous lawsuit is 
powerful ‘storm-warning’ evidence of awareness that triggers a duty to investigate related, readily 
discoverable uses.” 

Id.

 However, as Plaintiff points out, “Clement testified that ‘hundreds of 
thousands of accounts’ have stolen his content, creating a ‘massive, massive problem.’” ECF No. 
[49] at 12 (quoting ECF No. [47-2] at 13:9-20). Therefore, “[t]he sheer volume of potential 
infringements makes it impossible to discover all or any given one at any given time.” 

Id.

 Indeed, 
if the Court were to accept Defendant’s argument that Clement’s awareness that another entity was 
infringing upon the Video constitutes a “storm-warning concerning this Defendant,” the logical 
conclusion of this argument would be that whenever Plaintiff discovers one infringer, it is on 
“notice of the entire internet” of infringers. 

Id.

 Defendant’s reliance on Clement’s testimony that 
Rights Manager is “pretty effective” is not sufficient to meet its burden of demonstrating that there 
is “no genuine dispute of material fact” as to the statute of limitations affirmative defense. See 

ECF No. [57] at 2-3. Therefore, Defendant’s Motion is denied as to the statute of limitations 
affirmative defense.                                                      
B.  Fair Use                                                            
   “The fair use doctrine is a statutory exception to copyright infringement, which seeks to 
balance  First  Amendment  concerns  with  the  protections  otherwise  afforded  authors  by  the 
Copyright Act.” Latimer, 

601 F.3d at 1238

. Pursuant to Section 107 of the Copyright Act, “the fair 
use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching 
(including multiple copies for classroom use), scholarship, or research, is not an infringement of 
copyright.” 

17 U.S.C. § 107

. In order to determine whether the use of copyrighted work is a fair 
use, the factors to be considered include:                                

   (1) the purpose and character of the 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.

                                                                  

   Those statutory factors “provide courts with tools to determine—through a weighing of the 
four factors in light of the facts of a given case—whether a finding of fair use is warranted in that 
particular instance.” Cambridge Univ. Press v. Patton, 

769 F.3d 1232, 1259

 (11th Cir. 2014). 
Because  fair  use  is  an  affirmative  defense,  “its  proponent  bears  the  burden  of  proof  in 
demonstrating that it applies.” 

Id.

 It is also “a mixed question of law and fact.” Katz v. Chevaldina, 

900 F. Supp. 2d 1314, 1315

 (S.D. Fla. 2012) (quoting Harper & Row Publishers, Inc. v. Nation 
Enters., 

471 U.S. 539, 560

 (1985)).                                       
   i.   Factor One: Purpose and Character                               

   The first statutory factor “requires consideration of ‘(1) whether the use serves a nonprofit 
educational purpose, as opposed to a commercial purpose; and (2) the degree to which the work is 
a transformative use, as opposed to a merely superseding use, of the copyrighted work.’” Katz v. 
Google Inc., 

802 F.3d 1178, 1182

 (11th Cir. 2015) (quoting Peter Letterese & Assocs., Inc. v. 
World Inst. of Scientology Enters., 

533 F.3d 1287, 1309

 (11th Cir. 2008)).  
   As to whether the use of the Video serves a nonprofit educational purposes versus a 
commercial purpose, Defendant argues that there is “no genuine dispute that Defendant’s purpose 
in Reposting the Video was to comment on a local, newsworthy event[,]” a purpose which “is 
apparent from the on-its-face commentary accompanying the Repost, by its hashtags and is 
confirmed by Defendant’s corporate representative.” ECF No. [46] at 11. Although Defendant 

states the post  was not monetized, not used  for paid  advertising,  and did not include any 
commercial promotion or links, ECF No. [47] ¶ 3, Plaintiff disputes this, to the extent “the 
homepage for the @woodprojections social media account includes a direct link to Defendant’s 
associated website which Defendant uses to advertise and promote the sale of its products.” ECF 
No. [50] ¶ 3. Plaintiff argues that “Defendant’s appropriation of Plaintiff’s Video was part of a 
commercial venture” because Defendant’s Account “simply serves as a conduit to stay in touch 
with its client base and promote its merchandise.” ECF No. [49] at 16. Plaintiff also notes that the 
caption “references a loss of work productivity, specifically ‘we lost 2 days of work preparing and 
taking stuff down, but this is exactly why!’” 

Id.

 Indeed, courts have recognized that even if a 
defendant “did not directly profit from the use” of copyrighted material, “it stood to gain from the 
visitors that the [copyrighted material] attracted to its website.” Aug. Image, LLC v. AllWrite 
Commc’ns Inc., No. 23-cv-00910, 

2024 WL 4505000

, at *6 (N.D. Ga. Sept. 10, 2024); Barcroft 
Media, Ltd. v. Coed Media Grp., LLC, 

297 F. Supp. 3d 339, 353

 (S.D.N.Y. 2017) (use of 

copyrighted images on website “in order to lure traffic” contributed to finding of commercial 
nature). Therefore, there is a genuine dispute as to whether the use of the Video served a 
commercial purpose.                                                       
   As to whether the use of the Video was transformative, “[d]etermining whether a use is 
transformative requires asking ‘whether the new work merely supersedes the objects of the original 
creation, or instead adds something new, with a further purpose or different character, altering the 
first with new expression, meaning, or message.’” MidlevelU, Inc. v. ACI Info. Grp., 

989 F.3d 1205, 1221

 (11th Cir. 2021) (quoting Campbell v. Acuff-Rose Music, Inc., 

510 U.S. 569, 579

 
(1994)). “[T]he more transformative the new work, the less will be the significance of other factors, 
like commercialism, that may weigh against a finding of fair use.” Campbell, 

510 U.S. at 579

. 

Although Defendant argues that it transformed the Video by “pair[ing] a source-branded (NBC) 
snippet with commentary and hashtags to inform, and reassure with gratitude, that Mr. and Mrs. 
Karolewicz were safe after the storm, thereby, recontextualizing a stand-alone [electronic news 
gathering] asset into a weather update for friends, family, and a few followers[,]” ECF No. [46] at 
13, Plaintiff avers that Defendant “did nothing more than repackage Plaintiff’s Video on its 
Account for the same purpose the Video was created, specifically to document the destruction 
caused by the hurricane.” ECF No. [49] at 17. Whether or not Defendant’s use of the Video was 
transformative depends, in part, on the purpose of the Video. As such, there is a genuine dispute 
of material fact as to whether the Video was transformative.              
   ii.  Factor Two: Nature of the Work                                  
   “[B]ecause works that are highly creative are closer to the core of copyright—that is, such 
works contain the most originality and inventiveness—the law affords such works maximal 
protection, and hence it is less likely that use of such works will be fair use.” Patton, 

769 F.3d at 1268

. Therefore, in general, “fair use is more likely to be found in factual works than in fictional 
works.” Stewart v. Abend, 

495 U.S. 207, 237

 (1990). There is no dispute that the Video depicts a 
factual event: “the damage to the Abacos Islands in the Bahamas from Hurricane Dorian.” ECF 
No. [45-15] ¶ 12. However, Plaintiff argues that  the Video reflects “a number of creative 
determinations as to the subject matter, timing, lighting, angle, perspective, depth, lens and camera 
equipment used to create the video recording.” ECF No. [49] at 18; see ECF No. [47-3] at 8 
(infringing post with Video excerpt). Plaintiff also argues that Clement “immersed himself in the 
moment and captured the event from his singularly unique perspective.” Id. at 19.  
   As Defendant points out, “[t]he law generally recognizes a greater need to disseminate 
factual works than works of fiction or fantasy[.]” ECF No. [46] at 15 (quoting Patton, 

769 F.3d at 1268

). Although it may have taken a significant amount of effort to obtain the footage, the excerpt 
of the Video depicts helicopter footage of damage following a hurricane. ECF No. [47-3] at 8. It 
also contains an NBC logo, further illustrating that the Video is being used for news coverage. 

Id.

 
This  footage,  which  “was  created  to  document  the  extraordinary  weather  phenomenon  for 
commercial purposes[,]” ECF No. [45-15] ¶ 16, is not the type of work that “contain[s] the most 
originality and inventiveness [,]” such that “the law affords [it] maximal protection[.]” Patton, 

769 F.3d at 1268

. Therefore, the second factor weighs in favor of fair use.   
   iii.  Factor Three: Amount and Substantiality                        
   In order to analyze the “amount and substantiality of the portion used,” courts look “to the 
‘copyrighted work as a whole,’ not to the putatively infringing work.” Peter Letterese, 

533 F.3d at 1314-15

. Additionally, courts consider “not only . . . the quantity of the materials used, but . . . 

their quality and importance, too.” 

Id.

 at 1315 (quoting Campbell, 

510 U.S. at 587

). “[T]his factor 
is intertwined with the fourth factor and partly functions as a heuristic to determine the impact on 
the market for the original.” Id. at 1314.                                
   Although Defendant argues that it “used only a short excerpt from a 3:50 deposit copy, no 
more than reasonably necessary to convey the newsworthy moment[,]” ECF No. [46] at 16, 
Plaintiff argues “it is obvious that Defendant took the ‘heart’ of Plaintiff’s work.” ECF No. [49] at 
19. Indeed, the Court’s analysis of the third factor requires that it consider not only “the quantity 
of the materials used,” but also “their quality and importance, too.” Campbell, 510 U.S at 587. 
Because this factor is evaluated in “light of the purpose and character of the use,” it is “intertwined 
with the first factor.” Patton¸ 

769 F.3d at 1271

. Considering the Court’s finding that there is a 

genuine dispute of material fact as to the purpose of the Video’s use, there remains a genuine 
dispute of material fact as to the amount and substantiality of the portion used. 

17 U.S.C. § 107

(3).  
   iv.  Factor Four: Effect of Use Upon Potential Market or Value       
   The fourth factor “requires courts to consider not only the extent of market harm caused 
by the particular actions of the alleged infringer, but also ‘whether unrestricted and widespread 
conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact 
on the potential market” for the original.” Campbell, 

510 U.S. at 590

 (quoting 3 M. Nimmer & D. 
Nimmer, Nimmer on Copyright § 13.05[A][4], p. 13-102.61 (1993)). “The ‘central question’ is 
whether, assuming  that everyone engaged in the conduct of the defendant, the use ‘would 
cause substantial economic harm such that allowing [the conduct] would frustrate the purposes of 
copyright by materially impairing [the defendant’s] incentive to publish the work.’” Katz, 

802 F.3d at 1184

 (quoting Patton, 

769 F.3d at 1276

).  A proponent of the fair use affirmative defense “would 
have difficulty carrying the burden of demonstrating fair use without favorable evidence about 

relevant markets.” Campbell, 

510 U.S. at 590

.                             
   Defendant argues that Plaintiff has not identified any “specific lost license traceable to 
Defendant’s brief Instagram Repost and admits no actual-damage computation; its ENG pricing is 
non-exclusive and not seconds-based[.]” ECF No. [46] at 16 (citing ECF No. [47] ¶ 25). Moreover, 
Defendant contends Plaintiff failed to “identify a distinct, cognizable derivative market” that 
Defendant’s “use could possibly displace” because “[t]he market Plaintiff actually pursues is 
selling news licenses to media outlets for broadcast and digital publication of the full work (or 
editorially  selected  portions)[.]”  Id.  at  17.  Plaintiff  responds  that  Defendant  “seeks  to 
impermissibly shift the burden to Plaintiff to disprove this point, rather than on Defendant to prove 
[the] same.” ECF No. [49] at 20-21.                                       

   Plaintiff is correct that “because fair use is an affirmative defense, its proponent bears the 
burden of proof in demonstrating that it applies.” Patton, 

769 F.3d at 1259

. Applying Patton’s test, 
Plaintiff argues that “if the practice of using Plaintiff’s works without licensing were to become 
widespread, it is intuitive that the market for such works would diminish correspondingly.” ECF 
No. [49] at 21. In its Reply, Defendant fails to address Plaintiff’s argument that Defendant has the 
burden to establish the fair use affirmative defense, but instead focuses on the disputed assertion 
that “Defendant made no profit from the alleged use of the Video” and that “Plaintiff identified no 
specific lost license traceable to Defendant’s allegedly infringing use of an excerpt of the Video.” 
ECF No. [57] at 5. Defendant has not put forward any “favorable evidence about relevant 
markets[,]” Campbell, 

510 U.S. at 590

, but instead asserts the disputed fact that the purpose of 
Defendant’s post was “entirely different from that of the original Video[.]” ECF No. [57] at 4. 
Therefore, a genuine dispute of material fact exists as to the fourth factor.  
   Given the genuine disputes of material fact relating to three of the four factors, Defendant 

has failed to meet its burden, and Defendant’s Motion is denied as to the fair use affirmative 
defense. See Peter Letterese, 

533 F.3d at 1319

. (“Given the lack of sufficient evidence disproving 
the likelihood that widespread dissemination of the WISE Sales Course would supplant PL&A's 
market for derivative works, the fourth factor also favors PL&A with respect to those course 
materials. Defendants have therefore failed to prove their entitlement to summary judgment based 
on fair use.”). Nevertheless, Defendant has shown that its fair use affirmative defense is applicable 
and there is a genuine dispute of material fact. Therefore, Plaintiff’s Motion is denied.  
C.  Damages6                                                            
   Defendant  argues  that,  even  assuming  arguendo  that  Plaintiff  could  establish  that 
Defendant is liable for copyright infringement, “the record proves no recoverable damages.” ECF 

No. [46] at 18. Plaintiff responds that Clement “testified to this issue and directly identified a loss 
of licensing revenue for Defendant’s Infringement.” ECF No. [49] at 22; see ECF No. [47-2] at 
22:1-8 (“This video had several different licenses ranging from 19 to $30,000.”). Additionally, 
Plaintiff notes that it “has the right to elect statutory damages, as a matter of law[.]” ECF No. [49] 
at 23. Indeed, 

17 U.S.C. § 504

(a) provides that “an infringer of copyright is liable for either . . . 

6 The Court notes that although Defendant treats a failure to prove actual damages as an affirmative defense, this Court 
has previously found that a denial of a plaintiff’s allegations of damages “should be treated as a denial” and “is not an 
affirmative defense.” XYZ Corp. v. Individuals, Partnerships & Unincorporated Associations Identified on Schedule 
"A", No. 23-cv-24366, 

2024 WL 3673009

, at *6 (S.D. Fla. Aug. 6, 2024); Lindemann v. FD Holdings LLC, No. 24-
cv-1444, 

2025 WL 3654220

, at *5 (M.D. Fla. Feb. 11, 2025) (argument that plaintiff “suffered no damages . . . is 
better considered as a denial rather than as an affirmative defense”). Defendant does not cite any caselaw to support 
its argument that failure to prove actual damages is an affirmative defense to copyright infringement. See ECF No. 
[33] at 6 (listing “Plaintiff has not suffered actual damages” as an affirmative defense). Therefore, the Court interprets 
Defendant’s argument that Plaintiff has failed to prove actual damages as addressing Plaintiff’s prima facie case.  
(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided 
by subsection (b); or (2) statutory damages[.]” 

17 U.S.C. § 504

(a).       
   Defendant appears to concede that Plaintiff would be entitled to statutory damages, stating 
that “even if ‘Plaintiff has the right to elect statutory damages, as a matter of law,’ . . . such damages 

should  be  offset  on  the  basis  that  Defendant—if  liable  for  infringement—is  an  innocent 
infringer[.]” ECF No. [57] at 6 (quoting ECF No. [46] at 17) (internal citation omitted). Therefore, 
Defendant has not met its burden on its Motion.                           
D.  Innocent Infringement                                               
   Defendant argues that “to the extent that Plaintiff seeks statutory damages, the record 
compels a finding of innocent intent warranting a substantial reduction in statutory damages under 

17 U.S.C. § 504

(c)(2).” ECF No. [46] at 19. Defendant argues that the evidence reflecting that it 
“made a good faith, noncommercial repost with no intent to infringe, no revenue, and no attempt 
to conceal the use. The inclusion of the original source watermark (NBC), removal upon notice, 
and lack of any prior warnings or licensing communications from Plaintiff,” demonstrates that it 

was an innocent infringer. 

Id.

 Plaintiff responds that “[w]hile Defendant may have not known that 
the Video was Plaintiff’s, it certainly had every reason to belie[v]e that someone held the rights to 
the Video.” ECF No. [49] at 23. Plaintiff states that, “by virtue of the [NBC] watermark, Defendant 
would have at least been infringing on NBC.” 

Id.

                          
   Section 504(c)(2) provides that, where the court finds the “infringer was not aware and had 
no reason to believe that his or her acts constituted an infringement of copyright, the court in its 
discretion may reduce the award of statutory damages to a sum of not less than $200.” 

17 U.S.C. § 504

(c)(2). Because it is undisputed that the excerpt of the Video that Defendant included in its 
post contained an NBC watermark and it is disputed as to whether Defendant “reposted” the Video, 
there is a genuine dispute of material fact as to whether Defendant was an innocent infringer.  
E.  Unclean Hands                                                       
   Defendant argues that “Plaintiff’s claim fails under the maxim of unclean hands.” ECF No. 

[46] at 19. Specifically, Defendant argues that Plaintiff has unclean hands on four bases: (1) 
“Plaintiff relied on an intentionally altered screengrab that omits the NBC watermark and caption, 
context and commentary, mischaracterizing the nature and purpose of the Repost thereby also 
inflating willfulness”; (2) “Plaintiff’s 30(b)(6) witness conceded that a native Reposting . . . would 
not be actionable and focused instead on download/re-upload theory which did not occur in this 
case”; (3) “Plaintiff seeks statutory damages/fees while admitting no actual-damages calculation, 
no expert, and no identified lost license, despite an ENG, non-exclusive ‘price-is-the-price’ 
model”; (4) “the volume of suits and revenues from lawsuits (vs. licensing) show a fee-leverage 
model untethered to market substitution”; and (5) Plaintiff has misused its copyright. ECF No. [46] 
at 20-21.                                                                 

   Plaintiff responds (1) that it did not rely on an intentionally altered screengrab; (2)  
Defendant did not “Repost” the Video because the Repost feature was not available at the time 
Defendant made the post; (3) Plaintiff has properly alleged statutory damages and actual damages; 
(4) Defendant’s “failure to address this matter necessitated the instant lawsuit”; and (5) Plaintiff 
has not misused its copyright. ECF No. [49] at 24-25. Defendant also argues that Plaintiff has 
“abused this litigation to seek an exorbitant amount of damages . . . as part of a pattern of selective 
litigation in over 100 cases across the Nation.” ECF No. [57] at 7.       
   For a defendant to successfully avail itself of the doctrine of unclean hands, it must (1) 
“demonstrate that the plaintiff’s wrongdoing is directly related to the claim against which it is 
asserted” and (2) “show that it was personally injured by [the plaintiff’s] conduct.” Calloway v. 
Partners Nat. Health Plans, 

986 F.2d 446

, 450-51 (11th Cir. 1993). The defense of unclean hands 
has been applied where the “‘plaintiff misused the process of the courts by falsifying a court order, 
by falsifying evidence, or by misrepresenting the scope of his copyright to the court and opposing 

party,’ or ‘when the plaintiff obtained information as to the nature of defendant’s work through 
unfair means.’” Thornton v. J Jargon Co., 

580 F. Supp. 2d 1261, 1283

 (M.D. Fla. 2008) (quoting 
3 Nimmer on Copyright, § 13.09[B] (1991)).                                
   Most of Defendant’s arguments purporting to support a finding that Plaintiff has “unclean 
hands” amount to nothing more than a disagreement with Plaintiff’s arguments and strategy 
throughout  the  course  of  the  litigation.  The  sole  allegation  that  could  arguably  qualify  as 
“wrongdoing” would be that Plaintiff “relied on an intentionally altered screengrab[.]” ECF No. 
[46] at 20 (citing ECF Nos. [47] ¶¶ 1, 2; [1-2]). Although Defendant is correct that Plaintiff 
included in its Complaint and Statement of Material Facts a screengrab of the post that does not 
include Defendant’s accompanying caption, Plaintiff disputes that “the documentation submitted 

in  support  of  Plaintiff’s  Complaint  intentionally  excluded  any  information  regarding  the 
Infringement.” ECF No. [50] ¶ 14. Plaintiff also points out that its “earlier outreach and subsequent 
submissions provided all information regarding the infringing display at issue.” Id. (citing ECF 
Nos. [45-8] at 3; [45-5] at 2). Therefore, there is a genuine dispute of material fact as to whether 
Plaintiff’s actions constitute unclean hands.                             
   Regarding Defendant’s argument that Plaintiff has misused its copyright, the Eleventh 
Circuit “has not recognized, but has not rejected, misuse as a defense for infringement suits.” 
Telecom Tech. Servs. Inc. v. Rolm Co., 

388 F.3d 820, 831

 (11th Cir. 2004). Courts that have 
recognized the copyright misuse defense state that it “has its historical roots in the unclean hands 
defense” and that it “forbids the use of the [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).  
   Defendant  argues  that  Plaintiff  has  misused  its  copyright  by  “attempt[ing]  to  use 

[Defendant’s] post to suppress noncommercial, informational Reposting on a small business 
Instagram page, while seeking leverage through statutory damages and fees despite no market 
substitution[.]” ECF No. [46] at 21-22. Plaintiff responds that, even if this Court recognized the 
availability of a copyright misuse defense, it is not applicable here because Defendant’s argument 
“functions on a presumption that Plaintiff’s content is free to any individual/business operating on 
the planet so long as they find it of interest.” 

Id.

                      
   Indeed, it is undisputed that Plaintiff holds the copyright to the Video, ECF No. [45-15] ¶ 
19, so it is unclear what “exclusive right or limited monopoly not granted by the [Copyright] 
Office” is at issue. Home Design, 

2005 WL 1027370

, at *11 (quoting Alcatel, 

166 F.3d at 792

). 
Accordingly, there is a genuine dispute of material fact as to Defendant’s copyright misuse 

defense.                                                                  
IV.  CONCLUSION                                                         
   Accordingly, it is ORDERED AND ADJUDGED as follows:                  
   1.  Plaintiff’s Motion for Partial Summary Judgment, ECF No. [45], is DENIED; 
   2.  Defendant’s Motion for Summary Judgment, ECF No. [46], is DENIED; 
                                         Case No. 24-cv-23528-BLOOM/Elfenbein 

    DONE AND ORDERED in Chambers at Miami, Florida on January 5, 2026. 

                                          BETH BLOOM 
                                          UNITED STATES DISTRICT JUDGE 

Copies to: 
Counsel of Record 

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