## Facts

- MediaNews Group, Inc. (parent of the Denver Post) published a photograph of a TSA “enhanced pat-down” at Denver International Airport.
- MediaNews and Righthaven LLC entered an agreement that purported to assign the photograph’s copyright to Righthaven for enforcement purposes.
- Under the agreement, MediaNews retained an exclusive license to exploit the photograph and controlled marketplace use.
- Righthaven was prohibited from exploiting or licensing the photograph and from receiving royalties from its use.
- Righthaven’s interest was limited to identifying alleged infringers, filing infringement suits, and sharing in recoveries.
- Righthaven registered the photograph with the Copyright Office and filed numerous infringement suits over the same image, including against Leland Wolf, who operated “It Makes Sense Blog.”
- Righthaven alleged Wolf displayed the photograph on his website on two occasions without authorization.
- The court dismissed “It Makes Sense Blog” as a defendant because a domain name is not a suable legal entity.

## Issues

1. Whether an entity that obtained only a “bare right to sue,” without ownership of any exclusive copyright rights, has standing to sue for infringement under 17 U.S.C. § 501(b).
2. Whether the prevailing defendant is entitled to costs and attorney’s fees under 17 U.S.C. § 505 when the plaintiff lacked standing.

## Decision

- The court treated Wolf’s Rule 12(b)(1) motion as a Rule 56 summary judgment motion because the standing question was intertwined with the merits.
- The court held Righthaven lacked standing under § 501(b) because the agreement conveyed no substantive exclusive rights and functioned as a bare assignment of litigation rights.
- The court granted summary judgment for Wolf.
- The court awarded Wolf full costs, including reasonable attorney’s fees, under 17 U.S.C. § 505.

## Legal Principles

- Standing to sue for copyright infringement under 17 U.S.C. § 501(b) is limited to the legal or beneficial owner of an exclusive right in the copyrighted work.
- A contractual transfer that leaves the assignor with exclusive exploitation rights while giving the assignee only enforcement authority is a “bare right to sue” and does not confer standing.
- When jurisdictional facts are intertwined with elements of the federal claim, the court may resolve the standing issue under the Rule 56 summary judgment standard.
- Under 17 U.S.C. § 505, a prevailing defendant may recover costs and reasonable attorney’s fees, including where the plaintiff pursued an infringement action without statutory standing.

## Conclusion

The court ruled that Righthaven’s arrangement transferred only litigation rights and no substantive exclusive rights in the photograph, so Righthaven lacked standing to sue under § 501(b); it entered summary judgment for Wolf and shifted full costs and reasonable attorney’s fees to Righthaven under § 505.


Righthaven LLC v. Wolf, 813 F. Supp. 2d 1265 (D. Colo. 2011)