McGucken’s Death Valley Photos Stay Alive in Appellate Court

1. 02-03-2021: BAIT AND SUE: The Dark Art of Copyright Trolling
2. 07-24-2022: BAIT AND SUE: Elliot McGucken wants you to steal his photos
3. 07-27-2022: McGucken Copyright Infringement Lawsuit Index
4. 07-28-2022: Shutterstock may have ripped-off McGucken’s work
5. 07-30-2022: McGucken goes wild with Nat Geo lawsuit
6. 08-02-2022: Where does Plaintiff McGucken ever collect any money from his lawsuits?
7. 08-03-2022: McGucken’s Death Valley Photos Stay Alive in Appellate Court
8. 08-06-2022: RULE 60(b) Relief from McGucken Default Judgment
9. 08-08-2022: McGucken’s Lawyer’s Are Happy

Pub Ocean’s Fair Use Defense Struck Down by Ninth Circuit

Professional photographer and prolific plaintiff Dr. Elliott McGucken’s copyright infringement lawsuit over his photos of a lake formed by rain in Death Valley was revived on Wednesday by the Ninth Circuit. The court held that Pub Ocean Ltd. couldn’t invoke a fair use defense when it embedded his Instagram photographs in an article. The case now goes back down to district court in downtown Los Angeles.

The four factors that determine fair use of a copyrighted work “pointed unambiguously” in favor of McGucken, the appeals court said, so a federal judge in California incorrectly granted Pub Ocean partial summary judgment on the issue of fair use defense.

McGucken has been at the center of other high-profile copyright complaints against publications such as National GeographicNewsweek LLC and Barstool Sports Inc. His lawsuit …

Read the full Bloomberg Law article article by paying, or read the brief here for free.

McGucken is an excellent photographer

This Ninth Circuit brief on the fair use defense contains stunning photographs by Dr. McGucken. Too bad he has to file a federal lawsuit to get paid. I sure hope that the litigious Dr. McFuckem doesn’t decide to sue me.

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General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 21-55854
Docketed: 08/10/2021
Termed: 08/03/2022
Nature of Suit: 3820 Copyright Infringement – Fair Use Defense
Case Type Information:     1) civil     2) private     3) null
Originating Court Information:     
District: 0973-2 : 2:20-cv-01923-RGK-AS     
Trial Judge: R. Gary Klausner, District Judge     
Date Filed: 02/27/2020     
Date Order/Judgment:     
Date Order/Judgment EOD:    
Date NOA Filed:     
Date Rec’d COA:     07/27/2021     07/27/2021     08/10/2021     08/10/2021
Elliot McGucken v Pub Ocean Ltd.
02/02/2022 20 Submitted (ECF) Reply Brief for review. Submitted by Appellant Elliot McGucken. Date of service: 02/02/2022. [12359506] [21-55854] (Burroughs, Scott) [Entered: 02/02/2022 06:57 PM]
02/03/2022 21 Filed clerk order: The reply brief [20] submitted by Elliot McGucken is filed. Within 7 days of the filing of this order, filer is ordered to file 6 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: gray. The paper copies shall be submitted to the principal office of the Clerk. [12359598] (KT) [Entered: 02/03/2022 08:15 AM]02/07/2022 22 Received 6 paper copies of Reply Brief [20] filed by Elliot McGucken.

At oral argument in Pasadena, California on Friday, May 13, 2022, the parties are ordered to be prepared to discuss the following fair use defense issues: 1) Whether and to what extent Pub Ocean Limited’s article treated McGucken’s photos as the news story. See Monge v. Maya Mags., Inc., 688 F.3d 1164, 1175 n.8 (9th Cir. 2012) (explaining that “news reporters would have a better claim of transformation … where the content of the work is the story” (emphasis in original)); L.A. News Serv. v. KCAL-TV Channel 9, 108 F.3d 1119, 1121 (9th Cir. 1997) (“To the extent that KCAL ran the tape as a news story, this would weigh in its favor.”). 2) Whether this argument has been waived. [12435215] (WL) [Entered: 04/29/2022 04:39 PM]05/13/2022 27 ARGUED AND SUBMITTED TO SANDRA S. IKUTA, JACQUELINE H. NGUYEN and JOHN B. OWENS. [12446365] (BG) [Entered: 05/13/2022 11:59 AM]05/18/2022 28 Filed Audio recording of oral argument.
Note: Video recordings of public argument calendars are available on the Court’s website, at
[12449611] (BG) [Entered: 05/18/2022 08:12 AM]
mcgucken v national geographic copyright infringement lawsuit
Photography: Marcus Winkler/Unsplash

By Dean McAdams

Born a poor peckerwood in a Tujunga holler, Dean practiced secrets of the ancient & modern masters to end up liberated in the coastal paradise of West L.A.