Albuquerque Journal photo case: only injunctive relief claims over the Cannes photograph survive summary judgment

The order

The order overruling the plaintiffs' objections and adopting the proposed findings and recommended disposition is Document 253 in Jacobs v. The Journal Publishing Company, No. 1:21-cv-00690 (D.N.M.), filed October 22, 2026 and signed by Senior Judge Martha Vazquez. It reviewed de novo Magistrate Judge Kirtan Khalsa's recommended disposition filed July 8, 2026 (Doc. 237) on cross-motions for summary judgment. The plaintiffs, Michael Jacobs and Ruby Handler Jacobs, are proceeding pro se. (Order 1 to 2.)

Background

The claims arise from a December 2016 article in the Albuquerque Journal about federal charges against the plaintiffs and accompanying photographs, including a Journal photographer's photograph of a framed four-by-six-inch print of a photograph of the plaintiffs in Cannes, France, and the way the published photograph was credited. The operative third amended complaint pleads direct and contributory copyright infringement and a DMCA claim for providing or distributing false copyright management information (Counts 1 to 3), and six New Mexico tort claims (Counts 4 to 9). (Order 3 to 5.)

What the court decided

The court granted summary judgment on all of Ms. Handler Jacobs' copyright claims, noting that the plaintiffs acknowledged she does not own the copyright in the Cannes photograph and that only a copyright owner may bring those claims under 17 U.S.C. 501(b). It granted summary judgment on all of Mr. Jacobs' copyright claims for statutory damages, punitive damages, attorney's fees, actual damages, and profits, agreeing that his claimed actual damages were too speculative and that he showed no genuine dispute on gross revenue reasonably related to the alleged infringement. (Order 4 n.2, 12 to 13, 19.)

On the DMCA count, the court held that the plaintiffs' evidence, including what they describe as the photographer's sworn admission that he entered his own name in the creator field and the Journal in the copyright notice field of the image metadata, is insufficient as a matter of law to show that the defendants acted knowingly and with intent to induce, enable, facilitate, or conceal infringement, as 17 U.S.C. 1202(a) requires. It found no evidence that, when the Journal published the photograph, the defendants knew Mr. Jacobs or anyone else held a copyright in it. The contributory infringement claim against the Journal failed as to every nonparty website but one, for lack of evidence that any defendant knew of and caused or materially contributed to those websites' alleged infringement. Summary judgment was also granted on all six tort claims and on all claims against three individual defendants. (Order 6 to 11, 13 to 16, 19.)

Summary judgment was denied on Mr. Jacobs' direct infringement claims for injunctive relief against the Journal, the photographer James Thompson, William Lang, and Kent Walz, and on his contributory infringement claim for injunctive relief against the Journal based on that one nonparty website's alleged direct infringement. The plaintiffs' own summary judgment motion was denied: the order adopts the magistrate judge's findings that genuine issues of material fact remain on whether the use was a fair use, and that the record does not "unequivocally show" that Mr. Jacobs is the author of the Cannes photograph or the owner of its copyright. Their motion to amend that motion was denied, and their motion to extend was found moot. (Order 16 to 20.)