Mathieson Associates, Incorporated; Cnp v.  Charles L. Shoup

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MATHIESON ASSOCIATES,
INCORPORATED; CNP,
Plaintiffs-Appellants,
v. No. 00-2444 
CHARLES L. SHOUP; ANN L. SHOUP;
THE ARTIST’S PROOF, INCORPORATED;
POLITICAL AMERICANA; JIM WARLICK,
Defendants-Appellees. 
 MATHIESON ASSOCIATES,
INCORPORATED; CNP,
Plaintiffs-Appellees,
v.
CHARLES L. SHOUP; ANN L. SHOUP;
JIM WARLICK, No. 00-2521 
Defendants-Appellants,
and
THE ARTIST’S PROOF, INCORPORATED;
POLITICAL AMERICANA,
Defendants. 
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-99-1890-A)
Submitted: January 16, 2002
Decided: February 1, 2002

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Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
John M. DiJoseph, KAVRUKOV & DIJOSEPH, L.L.P., Arlington,
Virginia, for Appellants. James M. Loots, GOLDSTEIN LOOTS,
P.C., Washington, D.C.; William A. Marr, Jr., Matthew D. Banks,
LAW OFFICES OF WILLIAM MARR, JR., Fairfax, Virginia; Kevin
D. McInroy, MCINROY & RIGBY, L.L.P., Arlington, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Consolidated News Pictures (CNP), and its agent, Mathieson Asso-
ciates, Inc. (MAI), appeal the district court’s order denying their
motion for partial summary judgment and granting James Warlick’s
cross-motion for summary judgment and the district court’s order
granting Defendants Charles and Ann Shoup’s (Shoup) and the Artist
Proof Inc.’s (API) motion for summary judgment in their copyright
infringement action. Warlick and Shoup appeal the court’s order
denying their motion for costs and attorney’s fees. We affirm all of
the district court’s orders.
CNP copyrighted a 1963 photograph of sixteen-year-old Bill Clin-
ton with President Kennedy and registered the copyright in 1994.
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James Warlick is the majority owner of stores called Political Ameri-
cana (PA), which retails political memorabilia. In the early 1990’s,
API, owned by Shoup, began wholesaling assortments of political
photographs in bulk to PA, including the Kennedy-Clinton photo-
graph. API was PA’s sole source of the photographs. In 1995, Plain-
tiffs informed Shoup and API of the 1994 copyright registration and
granted API the nonexclusive right to market, advertise, and sell for
any price the photograph in any form or size, in exchange for the
negotiated royalty of one dollar for each image sold, retroactively
from September 20, 1995 until December 31, 1996.
Plaintiffs allege Shoup and API continued to market the photo-
graph after the licensing agreement expired by reproducing and sell-
ing it to PA and Warlick, who retailed the photographs at PA stores
as late as 1999 in violation of the Copyright Act, 17 U.S.C.A. §§ 101-
1101 (West 1996 & Supp. 2001).
MAI and CNP sued Shoup, API, PA, and Warlick in federal court
alleging copyright infringement. Plaintiffs filed a motion for partial
summary judgment as to the liability of Warlick, Shoup, and PA.
Warlick filed a cross-motion for summary judgment and a motion for
costs and attorney’s fees. Shoup and API also moved for summary
judgment. The district court denied Plaintiffs’ motion for partial sum-
mary judgment and granted the motions for summary judgment filed
by Warlick, Shoup, and API, finding Shoup and API had the right to
sell the image wholesale to Warlick and PA, who in turn had the right
to retail the image under the licensing agreement and the "first sale
doctrine," codified at 17 U.S.C.A. § 109(a). The district court denied
Warlick’s motion for attorney’s fees and costs. Plaintiffs noted a
timely appeal of the rulings on the motions for summary judgment.
Warlick and Shoup filed a timely cross-appeal of the orders denying
costs and attorney’s fees.
We review de novo the district court’s rulings on the motions for
summary judgment. Higgins v. E.I. DuPont de Nemours & Co., 863
F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is properly
granted when there are no genuine issues of material fact and when
the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). In determining whether summary judgment
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is appropriate, we view the facts in the light most favorable to the
non-moving party. Id. at 255.
We conclude the licensing agreement between CNP and API pro-
vided for the direct retail or wholesale sale of the Kennedy-Clinton
photograph by API. We also find Warlick and PA, which purchased
the photographs wholesale then retailed the photographs to the gen-
eral public, did not engage in copyright infringement. See 17
U.S.C.A. § 109(a); Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51
(1908) (holding purchaser of copyrighted item, once sold under
authority of the owner of the copyright, may sell it again). Thus, the
district court did not err in granting Defendants’ motions for summary
judgment and denying Plaintiffs’.
We further affirm the district court’s order denying Shoup’s and
PA’s motion for costs and attorney’s fees, pursuant to § 505 of the
Copyright Act and Fed. R. Civ. P. 11. We find no abuse of discretion,
considering the lack of evidence Plaintiffs acted maliciously, frivo-
lously, or without objective reasonableness. See Chaudhry v. Gal-
lerizzo, 174 F.3d 394, 410 (4th Cir. 1999); Diamond Star Bldg. Corp.
v. Freed, 30 F.3d 503, 505-06 (4th Cir. 1994).
Accordingly, we affirm. Having previously granted the
Appellees’/Cross-Appellants’ motion to submit these appeals on
briefs, we dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
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