     Case: 11-50044     Document: 00511950482         Page: 1     Date Filed: 08/08/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 8, 2012

                                       No. 11-50044                        Lyle W. Cayce
                                                                                Clerk

DELL CULLUM,

                                                  Plaintiff-Appellant
v.

DIAMOND A HUNTING, INCORPORATED, also known as Diamond A Ranch;
DALENE WHITE; DIAMOND A RANCH; DIAMOND A SPUR RANCH; DASRL,
L.L.C.; MDBW ENTERPRISES; BIG TIMBER OUTDOOR TRAILS,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:07-CV-0076


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Dell Cullum sued Defendants-Appellees Dalene White,
Diamond A Hunting, Inc., also known as Diamond A Ranch, and Diamond A
Spur Ranch (collectively, “DAR”)1 for copyright infringement under the Federal


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
         The additional named defendants—DASRL L.L.C., MDBW Enterprises, and Big
Timber Outdoor Trails — have not filed any briefs in this appeal and are not discussed by
Cullum in his briefs. Furthermore, it appears that the district court ordered Cullum’s Third
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                                       No. 11-50044

Copyright Act,2 and for unfair trade practices and unfair competition under the
Lanham Act.3 He alleged that, without his permission, DAR used photographs
he had taken of the Diamond A Ranch and requested injunctive relief and
damages, including lost profits, statutory damages, and attorneys fees.
      Cullum took the photographs in question while working as a ranch hand
at Diamond A Ranch. White claims that Cullum gave her a compact disc
containing the photographs which he had taken with her permission. Cullum
denies having ever given the photographs to White. In any event, DAR somehow
obtained the photographs and used some of them on its website and some in a
printed brochure for a seminar that White periodically held at the ranch.
      After Cullum and White’s relationship soured, Cullum informed DAR that
he held a copyright over the photographs and demanded that they not be used
without his permission. DAR nevertheless continued to use the photographs,
and Cullum filed this lawsuit. DAR removed the photographs from its website
after suit was filed, but continued to use some of them in its brochures for
White’s seminar.
      Both parties moved for summary judgment. The district court granted in
part and denied in part the parties’ motions, concluding that Cullum had
granted DAR an oral license to use the photographs, but had revoked it when he
filed this lawsuit. The district court held that DAR was liable only for its
continued use of photographs in the brochure, and it awarded Cullum $950 in
damages. Cullum appeals the district court’s holding that he had granted DAR
an oral license, its award of damages, and its denial of Cullum’s request for



Amended Complaint attempting to name these additional parties as defendants to be stricken
from the record. Accordingly, we do not address them in this appeal.
      2
          17 U.S.C. § 101 et. seq.
      3
          15 U.S. C. § 1051 et. seq.

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                                       No. 11-50044

attorneys fees, as well as a number of other rulings that the district court made
during the course of this litigation.
       Our review of the appellate briefs and the record on appeal convinces us
that the district court did not commit reversible error of fact or law with respect
to any of Cullum’s assertions. Although the district court did not explain — and
possibly contradicted4 — its finding that Cullum granted DAR an oral license,
we conclude that any error on this point is harmless because Cullum only sought
summary judgment relief with respect to DAR’s continued use of the
photographs following his filing suit. The district court found in Cullum’s favor
on this point, so his appeal of this issue is moot.
       With respect to damages, we conclude that the district court did not abuse
its discretion in treating the photographs as a compilation instead of individual
works for purposes of calculating damages. The record fully supports the
conclusion that Cullum’s photographs constituted one work “in which a number
of contributions, constituting separate and independent works in themselves, are
assembled into a collective whole.”5 Cullum registered the photographs in
question under a single copyright registration number, and he marked the disc
that he filed with the United States Copyright Office containing these
photographs as “Set Number 1.”6 Furthermore, Cullum himself refers to the
photographs in the record on appeal as a “collection.” Therefore, the district


       4
        ROA at 2075 (“Defendants have not . . . demonstrated that plaintiff intended that
defendants copy and distribute the photographs, a requirement for establishing an oral
irrevocable license. . . Nor have defendants provided evidence that plaintiff received
consideration for taking the photographs, another requirement for establishing an oral
irrevocable nonexclusive license.”) (citations omitted).
       5
        17 U.S.C. § 101 (definition of “collective work” which is included in the definition of
“compilation”).
       6
        See also Bryant v. Media Right Prod., Inc., 603 F.3d 135, 141 & n.6 (2d Cir. 2010)
(concluding that separate songs collected on one album were a compilation, despite fact that
each song might have been separately copyrighted).

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court did not commit any error in ruling that the photographs comprise a single
compilation for purposes of copyright law.
       Neither did the district court abuse its discretion in determining the
amount of statutory damages under the Copyright Act. Awards of statutory
damages under 17 U.S.C. § 504(c)(1) may range from a minimum of $750 to a
maximum of $30,000 per infringement of one work. If the court finds willful
infringement, it may enhance an award for each individually liable infringer,
and for the number of works that are infringed, up to a total of $150,000.7
Between the statutory maximum and minimum, however, the court has virtually
unfettered discretion in deciding the quantum of damages to award in a
copyright infringement case.8 The court’s award of $950 in damages to Cullum
is well within that statutory range. Moreover, the district court made this
award after considering a detailed report and recommendation from the
magistrate judge. We find no abuse of discretion.
       We also conclude that the district court did not abuse its discretion in
denying Cullum’s request for attorneys fees.                     “Prevailing plaintiffs and
prevailing defendants are to be treated alike, but attorney’s fees are to be
awarded to prevailing parties only as a matter of the court’s discretion.”9 The
district judge weighed the relevant factors for awarding attorneys fees, as noted
and discussed in Fogerty v. Fantasy, Inc.,10 then held that the parties must bear
their respective attorneys fees. We perceive no abuse of discretion in this ruling.



       7
           17 U.S.C. § 504(c)(2).
       8
           F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 232 (1952).
       9
           Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994).
       10
         Id. at 534 & n.19 (quoting factors listed by the Third Circuit, and agreeing that such
factors may be considered “so long as such factors are faithful to the purposes of the Copyright
Act and are applied to prevailing plaintiffs and defendants in an evenhanded manner”.)

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                                  No. 11-50044

      Finally, Cullum appeals numerous discretionary rulings made by the
district court throughout the lengthy course of this litigation. He contends that
the district court abused its discretion by (1) dismissing his Lanham Act claims
for failure to prosecute, (2) denying his motion to supplement his brief on the
issue of damages to add new allegations of copyright infringement, (3) denying
his motion to amend his complaint, (4) denying his motion for a continuance of
the trial setting, (5) denying his motion to strike evidence that DAR submitted
in support of its motion for summary judgment, (6) denying his motion to refer
the case for an investigation of possible criminal activity on the part of DAR, and
(7) denying his motion to compel inspection of a disc that DAR relied on as
summary judgment evidence. We have considered each of these assertions, and
we are fully satisfied that each is meritless.
      For the foregoing reasons, the district court’s summary judgment and
additional rulings that Cullum appeals are, in all respects,
AFFIRMED.




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