Tharpe v. Lawidjaja (8 F. Supp. 3d 743, 2014)

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

For the reasons stated herein, I will deny Defendant’s motion for partial summary judgment, and I will dismiss his counterclaims without prejudice for lack of subject-matter jurisdiction. Additionally, Defendant’s counsel’s renewed motion to withdraw will be denied, without prejudice, and Plaintiffs motion to set this case for a bench trial will be granted. Additionally, I will deny Defendant’s motions, filed by counsel long after filing counsel’s renewed motion to withdraw, seeking to exclude or limit testimony presented by Plaintiffs physician and expert witness.

I.

A.

Seeking damages, injunctive relief, and cancellation and rescission of a purported contract, Plaintiff filed a complaint alleging intentional infliction of emotional distress, fraud in the inducement, tortious interference with contract, and defamation. The crux of the complaint is that Defendant, who resides in Maryland, reached out to harass Plaintiff, who resides in Lynchburg, Virginia, by conducting a campaign of tor-tious acts in a deliberate attempt to adversely affect Plaintiffs employment in Lynchburg. Defendant removed the case from the Circuit Court for the City of Lynchburg, and then filed a motion to dismiss for improper venue or, in the alternative, to transfer venue to the United States District Court for the District of Maryland or the District of Columbia. The matter was briefed and heard, and at the conclusion of argument I stated that I would deny the motion. Thereafter, on October 26, 2012, 2012 WL 5336208, I issued a memorandum opinion further explaining that venue appropriately lies in this court, and the propriety of retaining venue here.

Subsequently, Defendant filed an answer and counter-complaint, alleging “a copyright infringement action” and “a Tor-tious Interference with Contract Expectancy and Prospective Business Relationship action.” Defendant has changed counsel twice (he is currently represented by his third set of counsel in this case), and the scheduling order in the case has been amended several times. Defendant filed a motion for partial summary judgment, which has been fully briefed, and Defendant has filed a notice indicating that he has waived any request for oral argument on the motion.

Plaintiff has filed a “motion to schedule case for trial without jury,” and Defendant’s counsel has filed a renewed motion to withdraw as counsel for Defendant based on “counsel’s continuing inability to communicate fully and effectively with Defendant” and “Defendant’s failure substantially to fulfill an obligation to counsel regarding their services as required by the signed retainer agreement....” Nonetheless, counsel for Defendant continues to file motions on Defendant’s behalf, including two pending motions seeking to exclude or limit testimony presented by Plaintiffs physician and expert witness.

B.

With some few additions and annotations, I repeat the summary of Plaintiffs factual allegations that I stated in my memorandum opinion of October 26, 2012.

Defendant’s motion states that he is a “commercial and fine art photographer with fifteen years of work in the fashion industry and in photojournalism.” Plaintiff posted photographs of himself on a Web-site used by aspiring models to promote themselves, and thereafter, in April or May 2010, Defendant contacted him. In the course of the ensuing acquaintanceship between Plaintiff and Defendant, Plaintiff signed two broad, seemingly boilerplate photographic release agreements, neither of which contains an integration clause, makes any reference to nudity, or recites with any specificity the supposed “valuable consideration received” by Plaintiff. The releases do not contract for any specific services; rather, they purport to grant to the photographer the rights “to all photographs taken of [Plaintiff] on or between ... Friday January 1st 2010 and Monday December 31st 2012,” and “all photographs or videos taken of [Plaintiffs] person on or between ... August 15th 2011 and December 31st 2015.”

Defendant photographed Plaintiff a number of times (at least once in Lynch-burg) and promoted Plaintiff as a model. Eventually, Plaintiff posed nude for Defendant. Plaintiff asserts that he agreed to do so only after Defendant assured Plaintiff that Defendant would not distribute photographs displaying Plaintiffs genitals or buttocks, and exhibits submitted in support of the complaint suggest that Defendant may have given Plaintiff this assurance.

Over time, relations between the parties deteriorated. There were angry scenes and tentative reconciliations between the parties. At least one of the angry scenes between the parties involved Defendant contacting Plaintiffs mother in Lynchburg. Plaintiff, who works as a soccer coach and was more committed to his employment as a coach than he was to pursuing modeling opportunities, apparently failed to attend some modeling appointments or commitments. More importantly, Plaintiff refused Defendant’s request that Plaintiff leave his employment as a coach, relocate to the Washington, DC area, and serve as Defendant’s “house model.”

During the course of the parties’ increasingly strained relationship, Plaintiff moved, in May 2010, to Tennessee to take a one-year coaching job. In May 2011, Plaintiff accepted his current coaching position, which began in July 2011, with Central Virginia United Soccer Club (“CVUS”) in Lynchburg.

In August 2011, Plaintiff learned through his employer that an Internet search using Plaintiffs name had returned Web-sites displaying “inappropriate and embarrassing” photographs of which parties associated with CVUS “did not approve.” Apparently there was a Web-site, maintained or controlled by Defendant, using Plaintiffs name. Defendant agreed to remove some of the pictures, “but left on the site a photograph which was still objectionable .... ”

On August 19, 2011, Defendant sent an e-mail to Plaintiff and to Plaintiffs employer, stating his position regarding Plaintiffs request to take down the photographs.

On September 16, 2011, Defendant sent an e-mail to Plaintiff, stating that he had “officially withdrawn” his support for Plaintiff at a modeling agency. Defendant added, “[a]s far as I know you [sic] no longer on their website.” Defendant concluded the e-mail by telling Plaintiff, “you are a great soccer coach, however, not much on modeling initiatives.”

On September 17, 2011, Defendant sent Plaintiff an e-mail directing Plaintiff to stop using Defendant’s contact list and to use his own contact resources. The complaint states that “Plaintiff responded to Defendant!,] explaining his reaction to Defendant black listing Plaintiff as a model.” That day, the parties continued to exchange e-mails regarding Plaintiffs career choices, with Defendant condemning Plaintiff for refusing to make a greater effort to pursue modeling, yet also condemning Plaintiffs ability to be a model.

Later in September 2011, Defendant called Plaintiff to tell him that one of his clients had requested Plaintiff, and Defendant offered Plaintiff the job. The complaint states that “Plaintiff agreed, as he needed the money; Defendant again began taking photographs of Plaintiff.”

According to the complaint, Defendant told Plaintiff that there was a publisher who wanted to do a calendar — apparently of nudes — “and that he would get 20% of the profits.” The complaint states that “Defendant said the theme was artistic/athletic; however, no genitals would be shown. Plaintiff agreed to the photo shoots with the understanding that no genitals would be shown.” In a series of text messages between October 5 and October 13, 2011, Plaintiff asked Defendant to make sure that any photographs of his body below the waist be cropped so as not to show his genitals, but Defendant would give him no such assurances. Plaintiff informed Defendant that he would no longer pose fully nude.

In September and October 2011, Plaintiff grew suspicious that Defendant had placed spyware on Plaintiffs cell phone, allowing Defendant to view text messages and e-mails exchanged between Plaintiff and Plaintiffs girlfriend. As a result of these suspicions, Plaintiff turned down a modeling opportunity presented to him by Defendant, and Plaintiff “then called Defendant and left a message informing Defendant that Plaintiff believed he had installed spyware on his phone, that he could no longer trust Defendant, and that he was finished working for Defendant.” The next day, Defendant sent a text message to “Plaintiffs mother and told her to tell Plaintiff never to contact him again.” Plaintiff states that he “had no further contact with Defendant until he heard about a cease and desist order ... and learned further that Defendant had posted one nude photograph [of Plaintiff] on [the] website [that used Plaintiffs name in the address] and other nude photographs [of Plaintiff] on Defendant’s [own] website .... ”

On December 8, 2011, Defendant wrote and sent a purported “cease and desist” letter to Plaintiff and to others at Plaintiff’s place of employment. Among other things, the letter airs a number of Defendant’s personal complaints about Plaintiff, and includes two appendices cataloguing such complaints.

On December 17, 2011, Plaintiff sent an e-mail to Defendant upon learning that Defendant had posted (on Defendant’s Web-site) full nude photographs of Plaintiff, and Defendant had tagged those photographs under the name of Plaintiffs employer, so that any Google search for CVUS would return the nude photographs of Plaintiff. Plaintiff asked Defendant to “please” remove the photographs for the sake of Plaintiffs future as a soccer coach. Plaintiff went to pains to wish Defendant well, and stated that all Plaintiff wished to do was to get on with his life. Later that evening, Plaintiff called Defendant and left a voice-mail asking Defendant to remove the photographs from the Web-site.

On December 18, 2011, Plaintiff again emailed Defendant, asking Defendant to take down all of the photographs showing Plaintiffs “genitals and butt,” and reminding Defendant that he had verbally agreed to never release any nude photographs of Plaintiff. Plaintiff added that Defendant had not only released several photographs, but that Defendant had also tagged CVUS in those photographs, even though CVUS was in no way connected to Plaintiffs modeling or Defendant’s photography, “‘and therefore is only tagged to get me caught and henceforth fired from my job.’” Plaintiff also pointed out that “one of the photos has a photoshopped erect penis, which furthermore depicts me in, a negative fashion,” and stated his view that Defendant’s actions were “a malicious attack for me to lose my job and jeopardize my future as a coach and any other jobs I may pursue.”

Copying Plaintiff and others at Plaintiffs place of employment, Defendant forwarded this e-mail to a lawyer who was apparently representing him at the time. The attorney, Mr. Arnold Lutzker (who does not represent Defendant in this matter), replied to Plaintiff, asking Plaintiff to “please communicate with me as his attorney as we attempt to resolve this matter,” and stating that the attorney would “encourage [Defendant] to reach an understanding with you and provided there is both mutuality and full follow through on your part, I believe he can be convinced to take such steps he believes useful to facilitate that understanding.” (Emphasis added.)

In an e-mail dated December 20, 2011, Plaintiff replied as follows:

Mr. Lutzker,

I appreciate your e-mail. Please be aware that your client, Rudy K, is posting full frontal nude photos of me on his website. We have a verbal agreement for such nudity never to be published. In addition, Rudy K has photoshopped an erect penis on some of the photos, which portrays me negatively. Not only has he done all of the above, he has tagged the pictures under my soccer club’s name and position with the club. Doing this causes my naked photo to appear when googling the image of the club. My club has nothing to do with modeling or Rudy K’s photography, and he knows that such photos are detrimental to my position at the club, as we had a similar incident a few months ago. He is doing this maliciously to cause me to lose my job and will be detrimental to my future career as a coach and in other professions I may choose.

I do apologize that my actions would cause Rudy such hurt that he feels the correct action would be one that would tarnish my career. I never did anything intentionally, and Rudy always knew that my coaching took priority over modeling. He had dropped me a couple times in the past as a model for conflicting issues, and he pursued to get me back, which is simply bad business on his part knowing my limitations. I have e-mails to prove such. Despite the Model Release I signed, I never signed a contract where I was obligated in such ways to make Rudy K financial gains. I never received a copy of the Model Release, and I request to have one sent to me. If not, it will be subpoenaed if the matter goes further.

Rudy K contacted my mother several weeks ago to never have me contact him again. I adhered to that, as how things ended with us did not warrant me to want to speak to him again. If such a request, why perform such actions that would make an interaction a must? I understand I was a disappointment in Rudy’s eyes, but I do not think it is illegal to be a bad model. I have sent you all the printed materials I have in my possession, have taken down all the photographs taken by Rudy K on Face-book, and have deleted my domain name account for my website, as well as deleting all photos from my computer.

I do not wish to have this matter go further; however if Rudy K persists to publish such malicious material of myself with the purpose of getting me fired and tarnishing my reputation and career as a soccer coach, I will take necessary actions. I request Rudy uphold our verbal agreement to never publish any full nudity photos of myself and take down the ones on his website. I wish for this matter to be resolved as quickly as possible.

In a follow-up e-mail dated December 21, 2011, Plaintiff asked Lutzker, “What does Rudy K want? I received a text stating ‘There is one thing you can do in person amp [sic ] will amend the situation for all parties as well as saving your future.’ ”

Beginning in January 2012, e-mails were exchange and meetings were held to try to resolve the issues between the parties, in particular Plaintiffs demand that Defendant remove all of the frontal nude photographs from his Web-site, and Defendant’s demand for consideration before he would remove the photographs.

In an e-mail exchange dated January 18, 2012, Plaintiff asked Lutzker when they could have a discussion to try to resolve the situation. Lutzker replied, “I think the best thing to do first is for you to try to work this out directly with Rudy. You should particularly be thinking what you can offer him in return for what you want from him.” (Emphasis added.)

Also on January 18, 2012, Defendant wrote an e-mail message to Plaintiff expressing his dissatisfaction with Plaintiff, apparently borne of resentment Defendant felt for having made gifts or loans to Plaintiff. The message included the following: “Gee even your own mother either cant remember or don’t want to say what she has told me. With the rate this is going I might as well unblock everything and posted more pictures as usual.” (Emphasis added; otherwise quoted verbatim.)

In an e-mail message dated February 8, 2012, stating in the subject line, “This is non negotiable,” Defendant sent to Plaintiff a demand outlining what he wanted from Plaintiff in exchange for taking any steps to attempt to remove the nude photographs. First, Defendant demanded that Plaintiff “[ajctivate [his] website,” and Defendant provided specific instructions how to do so. Then, Defendant directed that Plaintiff was to “start blogging till end of September 2012 with [at] least 3 posting a month,” adding that “[t]he posting may not contain anything that show hates/discrimination towards LGBT community and fashion/modeling.” (Bracketed insertions added; otherwise verbatim.) Defendant ordered Plaintiff “to tell [Plaintiffs employer] today That You are back into modeling and will do/aiming for September fashion week 2012 to FINISH what you STARTED.” (Bracketed insertion added; otherwise verbatim.) Defendant repeated that his demands were non-negotiable, and that Plaintiff had until 5:00 p.m. that day to meet his demands, or Defendant would “not do anything.”

Also on February 8, 2012, Defendant sent Plaintiff a series of text messages that included the following statement: “Read the email I just sent and its non negotiable. Its only valid for google cache problem.” (Verbatim quote.) Another message from Defendant stated, “Maybe when you lost ur job and move out of lynehburg good for everyone. That way nobody win. At the moment u, bren and cvu have everything to gain from [me] helping you. That’s [a]ll I’m gonna say[.]” (Bracketed insertions added; otherwise verbatim.) When Plaintiff responded, “That is fucked up that you want me to lose my job,” Defendant replied, “Lost, quit, move or whateveru call it. so nobody win.” (Verbatim quote.) Defendant sent other messages stating the following: “Mark my word, even after google finish clearing the cache and cvu still letting u go, u gonna react differently”; “Again I’m sorry for snapping at u today and threatening to put the pictures back up. No excuses just apology[.]” (Emphasis and bracketed insertion added; otherwise verbatim.)

On February 9, 2012, Defendant sent Plaintiff an e-mail reiterating his demands from the day before, e.g., stating “[n]ow show me something that you support me and trying to make this Fashion week not as painful. And this support need to be directed to my industry.” (Bracketed insertion added; otherwise verbatim.)

On February 14, 2012, Plaintiff e-mailed Defendant, stating that Defendant’s posting the nude photographs on various Website had “been one of [Plaintiffs] worst nightmares.” Plaintiff informed Defendant that he was finished with modeling and that he would have no further contact with Defendant.

On February 14, 2012, Defendant responded by e-mail that included the following statement: “As we discussed over the phone on February 12th, 2012 at 11.30 pm as well as your email, dated 02/12/2012, you stated that you ‘can’t and won’t do things you don’t want to do,’ I am responding in likeness.” (Verbatim quote.) Defendant also wrote the following:

The fact that you can’t even follow through on anything or do what you said you would do, in essence reversing your action — I am reversing all my actions as well. After that I will not do anything until I receive offers from you which are comparable to what you are asking of me. It is now your responsibility to arrange propositions that will entice me into agreement. I refuse to continue in any further discussions with you concerning your pictures until these conditions are met and your obligation fulfilled.

The complaint alleges that, “in March/ April 2012, Defendant created three more websites in Plaintiffs name,” and posted on those Web-sites nude photographs of Plaintiff, “some of which had been edited” to depict Plaintiff with a tumescent penis or ejaculating. Plaintiff adds that the Web-sites also promote photographs that are password-protected, that nude photographs of Plaintiff have been posted on other Web-sites, and that nude photographs posted on the Internet have been tagged with the name of Plaintiffs employer.

Plaintiff also alleges his belief that, “under fictitious names,” “Defendant composed and sent a series of e-mails to” several youth soccer associations, and that “[t]hese e-mails were sent maliciously and with the intent to have Plaintiffs employer terminate his employment and to embarrass and humiliate Plaintiff....”

C.

Defendant submitted his 85-page answer and counter-complaint (48 pages of which is the counter-complaint, in turn repeating much of the content of the answer) with an additional 146 pages of exhibits. I have thoroughly reviewed Defendant’s pleadings and the submissions attached thereto and, aside from simple denials, Defendant’s filings do little to materially controvert the allegations of the complaint. However, Defendant’s pleadings and submissions include a great quantity of statements, characterizations, and admissions (of which more later) that constitute “redundant, immaterial, impertinent, [and] scandalous matter” (again, of which more later), and because of the redundancies, immateriality, impertinence, and scandalousness of the pleadings and other submissions, I could strike them. See Fed.R.Civ.P. 12(f). For the same reasons, I could strike Defendant’s pleadings for not complying with Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” (Emphasis added.)

Nonetheless, upon review and consideration of the merits of Defendant’s counterclaims, and given the admissions (and other statements and characterizations) presented within Defendant’s voluminous pleadings and submissions in support thereof, I must discuss certain portions of the matter found therein. Indeed, Defendant’s disregard for the language of Rule 8(a)(2), requiring “a short and plain statement of the claim showing that the pleader is entitled to relief,” turns out to be one of those instances where the party has pleaded himself out of court “by pleading facts that show he has no legal claim.” Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir.2011) (citations omitted); see also Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006) (citations omitted) (it “ ‘is possible for a plaintiff to plead too much: that is, to plead himself out of court by alleging facts that render success on the merits impossible’ ”).

1. Defendant’s Answer

Defendant “admits that he told Plaintiff that he would not release certain fully nude body posing practice photos he took of Plaintiff....”

Defendant admits that he posted photographs to the “members only section of Defendant’s website at rudykphotogra-phy.com where Plaintiff and hundreds of others had full access, as well as publicly displayed on the websites of third parties _” (Emphasis added.)

Defendant admits that, “after [Plaintiff] had taken a job at CVUS and a board member of a competing soccer club ... brought Defendant’s photographs to the attention of Plaintiffs employer,” Plaintiff “claimed that his publicly available partially nude and fully nude fine art photographs, including ones displaying [Plaintiffs] genitals, were detrimental to [Plaintiffs] coaching career....” (Emphasis added.)

Defendant states that “a number” of “the many thousands of fine art nude and ‘physique’ photos of Plaintiff’ were “publicly available on Defendant’s two websites, and on the websites of third parties[ ]-” (Emphasis added.)

Defendant states that “some of’ “the thousands of nude photographs Defendant had taken of Plaintiff ... were 'publicly displayed on Defendant’s two websites, as well as on the websites of third parties! (Emphasis added.)

Defendant “admits that ... there continued to be a number of fully nude photographs displayed on Defendant’s two websites, as well as picked up and displayed on the websites of third parties (Emphasis added.)

In June 2011, Defendant “told Plaintiff he would no longer work with him as a model,” and asked Plaintiff “to return the modeling portfolio (large book), business cards and composite cards (comp cards) which Defendant had spent approximately $7000.00 to have printed for Plaintiff.” Defendant “further admits that at this time he told Plaintiff not to use any of Defendant’s copyrighted photographs, specifically those photographs Defendant had taken of Plaintiff, or Defendant would enforce his legal rights in them.” Defendant

admits that during May or June 2011 that Plaintiff returned the modeling portfolio Defendant paid to have prepared, the clothing Defendant had given to Plaintiff, the Android smartphone Defendant had given to Plaintiff (this was the first of two phones Defendant gave to Plaintiff — defendant gave the second Android smartphone to Plaintiff in July 2011 and it was never returned by Plaintiff), and a check for the money Defendant gave Plaintiff to pay for Plaintiffs [sic] funeral expenses, but Defendant never cashed that check and instead returned it to Plaintiffs mother.

Defendant states that, “moved by” Plaintiffs mother’s request that Defendant help Plaintiff “with his modeling career and to help Plaintiff increase his income,” he “apologized to her for losing his temper with Plaintiff and returned Plaintiffs portfolio to her.”

Defendant admits that

Plaintiff told him that a board member of another soccer club in Forest, Virginia! ] • • • had conducted an internet search using Plaintiffs name and had discovered Plaintiffs website james-tharpe.net, where there were fine art partially nude photographs of Plaintiff taken by Defendant which were uploaded to and posted on Plaintiffs website by Plaintiff and Defendant together from Defendant’s home in early 2011. Defendant further admits that Plaintiff told him that [the board member of the other soccer club] had told Plaintiffs employer CVSU that he did not approve of certain photos on Plaintiffs website.

(Emphasis added.) “Defendant admits that at the request of Plaintiff he took one non-nude photograph of Plaintiff down from Plaintiffs website because he had access to Plaintiffs website.... ” Defendant “further admits that after he took the one photograph down for Plaintiff,” Plaintiff told him of other soccer-club-related complaints “about a second non-nude photograph of Plaintiff,” and that Defendant also “took down” that photograph “upon Plaintiffs request.” Defendant

admits that following numerous requests from Plaintiff to assist Plaintiff with the situation with [the board member of the other soccer club] and [Plaintiffs] employer CVUS, and following a conference call with Plaintiff and Brent Kel-lum, Technical Director at CVUS, he sent Mr. Kellum and Plaintiff an email on August 19, 2011 stating, among other things, that at their request he had blocked numerous computer IP addresses (approximately 153,000) from the Lynchburg, Virginia area from viewing Plaintiffs website, that he had taken down two photographs of Plaintiff from Plaintiffs own website which Plaintiff could have taken down himself, that Plaintiff and Mr. Kellum were making these numerous requests of Defendant during Defendant’s busiest time of the year for his business, and that he would not be taking down any more photographs from Plaintiffs own website for Plaintiff.

Defendant admits that, regarding a poster and postcard project in which Defendant intended to use Plaintiff as a model,

' he and Plaintiff exchanged text messages on October 5, 2011 about the postcard and poster company opportunity, the fact that said company does not typically include genitalia in their fíne art nude posters and postcards, Plaintiffs request that they not show his genitals, and Defendant responded by telling Plaintiff that the poster and postcard company typically does not include genitalia in their fíne art nude posters and postcards.... Defendant further admits that he and Plaintiff exchanged a series of text messages on October 13, 2011 concerning clothing given to Plaintiff by Defendant for a photoshoot, that Plaintiff stated that he did not want to do any more fully nude photo shoots because he felt he had enough to show third parties for promotional purposes, [and] that Defendant had sent Plaintiff an email of examples of fíne art nude photographs ....

(Emphasis added.) Defendant states that, on “the very next day” and over the course of several days thereafter, he shot 1,838 photographs of Plaintiff, 1,434 of which were nudes, and some of which included exposure of Plaintiffs genitals.

Defendant denies that, after October 2011, he “posted a fully nude photograph of Plaintiff on Plaintiffs website at james-tharpe.net,” but he admits that either he or Plaintiff (the language in the answer is imprecise) blocked the other’s

administrative access (and ability to post or remove content) to Plaintiffs website at jamestharpe.net in November or December 2011. Defendant further admits that he posted twenty-two (22) publicly accessible and publicly displayed fully nude photographs of Plaintiff, showing Plaintiffs genitals, on his website at ru-dykphotography.com/blog between June 20, 2010 and February 17, 2012, and that Plaintiff was fully aware of the public display of his genitals on Defendant’s website that entire time. Similarly, Defendant further admits that between July 31, 2010 and August 13, 2011, he posted and displayed seven fully nude photographs of Plaintiff showing Plaintiffs genitals on his website at rudyk-photography.com in the “Client Login” registered member section (which leads to rudykphotographyinfo), which photo section was accessibly [sic ] by hundreds of members of Defendant’s website once they were approved by Defendant, including Plaintiff since March 18, 2010, and that Plaintiff was fully aware of the display of his genitals in those seven photos at the time they were posted and thereafter. Defendant further admits that some of the aforementioned photographs were picked up and publicly dis played at the websites of third parties and that Plaintiff was fully aware of those third party displays. Defendant admits that he posted the aforementioned fully nude photographs of Plaintiff for their promotional value to his business pursuant to his copyrights and the rights and permissions granted to him expressly by Plaintiff in the two separate standard model releases signed by Plaintiff. Defendant further admits that on November 5, 2010, in response to Plaintiff asking him whether Defendant’s fully nude photographs of Plaintiff, including those displaying Plaintiffs genitals, were showing up in Google search results following searches for Plaintiffs name, Defendant told Plaintiff via text message that Plaintiff needed to search with the “safe search” option off in order to view any nude or semi-nude photographs which showed up in the Google search results.

(Emphasis added.) Defendant states that, after “numerous downloads of photos from his websites,” he “rescinded the limited nonexclusive permission he had earlier granted to Plaintiff to display his images for promotional and related uses.... ” (Emphasis added.) Defendant states that, although he had “rescinded” the permission “he had earlier granted,” Plaintiff thereafter “used and displayed six of Defendant’s copyrighted photographs as his primary modeling portfolio at models.com until Defendant’s [then-attorney, apparently John D. Mason] demanded again that Plaintiff cease all use of Defendant’s copyrighted works.... ”

Defendant repeatedly “admits that he posted twenty-two publicly accessible and publicly displayed fully nude photographs of Plaintiff, showing Plaintiffs genitals, on his website at rudykphotography.com/blog between June 20, 2010 and February 17, 2012,” and that he posted additional nude photographs available to “hundreds” of other approved users of his website, including Plaintiff. (Emphasis added.) Defendant admits that he added “keywords” and tags to photographs of Plaintiff, including Plaintiffs name, “Central Virginia, United States,” “coach,” “physique,” “male model,” and “soccer.” Defendant admits that, “in late summer 2011,” upon Plaintiffs request, Defendant photographed “a head shot of Plaintiff for Plaintiff to use” on his employer’s Website.

“Defendant admits that he took a fully nude photograph of Plaintiff with a semi-erect penis on August 7, 2010, retouched it on August 7, 2010 and in September 2010, and uploaded and posted it” to a “gallery on his website,” “which Plaintiff and hundreds of other people could access.” “Defendant further admits that in order to enhance that photograph’s commercial quality and value, he retouched various parts of Plaintiffs body in it,” including Plaintiffs penis, “at Plaintiffs request to ‘make his penis look good to impress girls[.]’ ” The parties communicated electronically about retouching, and Defendant sent a message stating, “I was enlarging your chest and biceps using lens correction and voilaa ur peepeee get enlarged as well.” (Verbatim quote.) Defendant admits that the retouched photograph remains “posted and publicly displayed ... on his fully accessible public website ” and that the photographs are tagged with keywords embedded in the digital files. (Emphasis added'.) Defendant also admits that “internet search engines began connecting Defendant’s photographs of Plaintiff more and more strongly with those keywords ... such that search results for the name of Plaintiffs employer, Central Virginia United Soccer, began to include Defendant’s long publicly displayed fully nude photographs of Plaintiff....”

Regarding the allegation in the complaint of “Defendant’s demand for consideration for removing these photographs,” Defendant suggests that extortionate threats are in the ordinary course of dealing for “fashion” photographers:

Defendant further admits that models who take nude and fully nude photographs in their youth often come to regret it in later years for a variety of reasons, especially when the photographs are publicly accessible on the internet, that it is a common situation in the fashion industry, and that it is one which he has dealt with in the past, and one where often a fair and reasonable sum is paid to the rights holder photographer for the rights which the now remorseful model wants to acquire.

(Emphasis added.)

Defendant admits that, on February 7 or 8, 2012, “he apologized for threatening to put back up the approximately eleven publicly accessible fully nude photographs of Plaintiff which he had recently taken down from his website rudykphotogra-phy.com/blog following Plaintiffs repeated requests.” Defendant further admits that, “in response to Plaintiffs email of February 14, 2012,” wherein Plaintiff essentially stated that he wanted no more contact with Defendant,

Defendant sent Plaintiff an email in which he told [Plaintiff] “I am reversing all of my actions as well. After that I will not do anything until I receive offers from you which are comparable to what you’re asking of me.” Defendant further admits that models who take nude and fully nude photographs in their youth often come to regret it in later years for a variety of reasons, especially when the photographs are publicly accessible on the internet, that it is a common situation in the fashion industry, and that it is one which he has dealt with in the past, and one where often a fair and reasonable sum is paid to the rights holder photographer for the rights which the now remorseful model wants to acquire.

(Emphasis added.)

Leaving behind Defendant’s repeated admissions regarding the supposed customary practices of fashion photographers dealing with models, “Defendant admits that,” purportedly “pursuant to the rights granted by Plaintiff in the two separate model releases to Defendant to use Plaintiffs name in connection with Defendant’s photographs of Plaintiff,”

he registered four domain names which included permutations of Plaintiffs name: jamestharpe.net, jimmyth-arpe.net, jimmytharpe.com, and jtharpe. com. Defendant admits that on May 16, 2010 he registered and told Plaintiff that he had registered jamestharpe.net, Plaintiff knew Defendant had done this and that Defendant gave Plaintiff access to and ownership of the website they built together during December 2010 and January 2011....

(Emphasis added.) Defendant admits that “he set up orders with a domain name registrar for jimmytharpe.net, jimmyth-arpe.com, and jtharpe.com, ... even though the relationship between Plaintiff and Defendant had soured,” and that “in late March 2012 he had two websites go live at jimmytharpe.net and jimmyth-arpe.com and posted photographs on them,” and a “website created at jtharpe. net went live in April 2012.”

Defendant admits that

in a number of fully nude photographs Defendant took Plaintiff is either partially or fully erect, and me of those was enhanced by Defendant to enlarge Plaintiff’s penis and other enhance Plaintiffs other body features on August 7, 2010 and in September 2010. Defendant admits that as a joke in late Summer/early Fall 2010 he photoshopped what appeared to be ejaculate into a photograph of Plaintiff with an erection taken on August 7, 2010, and that he gave a copy of that photoshopped photograph to Plaintiff and viewed it with him in person in the Fall of 2010. Defendant admits that in late April 2012 he uploaded a small cropped portion of the stomach of that photoshopped photograph, with a small amount of photoshopped fake ejaculate, at the website jimmyth-arpe.net, and that those pages of that website never went live to the public and were not accessible from the internet. Defendant also admits that in late April 2012 he uploaded that entire photosh-opped photograph, containing the pho-toshopped fake ejaculate, at the website jimmytharpe.com, and that those pages of that website never went live to the public and were not accessible from the internet.

(Emphasis added; otherwise verbatim.)

Defendant states that, on July 31, 2010, he photographed Plaintiff with a female model, and that Plaintiff and the female model “posed together partially clothed and fully nude and often intertwined with each other for more than four hours and thousands of photographs.” Defendant further admits that “Plaintiff became aroused” during the shoot, and that such arousal is apparent from the photographs. “Defendant admits that” he and Plaintiff exchanged text messages referring to Plaintiffs “leaky faucet,” that “Plaintiff wrote ‘Lol, I guess I was a little turned on,” and “that following this text exchange Plaintiff and Defendant began referring to Plaintiffs semen as ‘Jimmy Juice’.” “Defendant further admits that on November 18, 2011” he uploaded a photograph containing “a barely visible drop of Plaintiffs ejaculate to jtharpe.com, and that in April 2012 he made that website live for public viewing.”

2. Defendant’s Counter-Complaint

Defendant states that, between March 18, 2011, and October 21, 2011, “Defendant and Plaintiff ... conducted 42 total photo-shoots together,” for a total of “139:16 hours or approximately 5.8 entire days of shooting photographs.” Defendant adds that his “hourly rate is $500.00 per hour if Defendant supplies clothing, and $350.00 if models bring their own clothes.” Defendant states that most of the photographs were taken in Maryland, some in Washington, some in Virginia, and some in New York. Defendant states that, of the “approximately 27,941 clothed and nude photographs” he made of Plaintiff, 15,232 were “nude and semi or partially nude,” and that “Defendant shot semi or partially nude or nude photographs of Plaintiff’ “at 33 of the 42 total photoshoots.”

Defendant goes on to allege a great deal of detail about every photo session. Describing “the nineteenth photo shoot Defendant had with Plaintiff on July 31, 2010 in Rockville, Maryland,” he restates details he provided in his answer:

a) Defendant took 2147 nude and semi or partially nude photographs of Plaintiff, including some displaying Plaintiffs genitals; b) on his computer or camera during the photoshoot, Defendant showed Plaintiff many of the nude photographs of Plaintiff taken that day; c) that Plaintiff shot that day with [a female model], a friend of Defendant who Plaintiff contacted because Plaintiff wished to do a photoshoot in which he posed with a female model; Defendant was not prepared to shoot [the female model] because he was not notified she was attending the photoshoot and did not have clothes ready for [her]; e) Plaintiff and [the female model] posed together partially clothed and fully nude and often intertwined with each other; f) Plaintiff and [the female model] posed together for more than four hours and Defendant took numerous photographs of them; g) Plaintiff became aroused during said photoshoot and his penis was fully or partially erect at times during the photoshoot when Defendant was photographing him; h) Defendant ■ emailed to Plaintiff on or about November 5, 2010 and attached a copy of one photograph from that photoshoot containing what appears to be a barely visible drop of ejaculate on.Plaintiffs genitals; i) in a text message exchange later that day Plaintiff referred to that photo as “leaky faucet”; j) in that same November 5 2010 text message Plaintiff wrote “Lol, I guess I was a little turned on”; k) following this photoshoot, Plaintiff and Defendant began referring to Plaintiffs semen as “Jimmy Juice”....

Defendant states that he “invested significant resources” to help “Plaintiff develop himself and promote his modeling career,” adding that he “paid Plaintiff approximately $17,000.00 in fees and reimbursed costs, including meals, parking, gas, airfare, train tickets, hotel stays, and assorted' other costs” and that he “gave Plaintiff approximately $24,000.00 in clothing, shoes, modeling supplies/cosmetics (hair products, etc.), printing costs for business cards, promotional composite cards, a professional modeling portfolio book, studio time fees, promotional fees, stylists, and assorted other costs.” (Emphasis added.) Defendant states that he “introduced Plaintiff to many of Defendant’s own contacts in the fashion industry and companies and people with whom Defendant did business,” and that he “used clothed and nude photographs to promote Plaintiff in the Fashion industry, and clothed and nude photographs taken by Defendant were included in Plaintiffs modeling portfolio book.” In addition to having “paid” Plaintiff and making generous “gifts” to him, “Defendant sometimes loaned Plaintiff money, and sometimes gave Plaintiff money, such as the time in early Spring 2011 he gave Plaintiff money to assist Plaintiff with the burial expenses for Plaintiffs father.”

Defendant states that he “maintains a limited access gallery on his website ... where approximately 500 people Defendant has approved, including Plaintiff, can access fully nude photographs taken by Defendant which he may have more publicly released yet.” (Emphasis added; otherwise verbatim.) Defendant specifies that he “gave Plaintiff access and an approved password to his ‘Client Login’ gallery ... on March 18, 2010 at their first photoshoot.” (Emphasis added.) Defendant states that, “[b]etween June 20, 2010 and February 17, 2012, Defendant posted twenty-two (22) publicly accessible and publicly displayed fully nude photographs of Plaintiff....” (Emphasis added.)

Defendant repeats details about having made photos of Plaintiff “publicly accessible,” and of Plaintiff having access to Defendant’s “Client Login” section, where access was- “limited” to “hundreds of members of Defendant’s website.” Defendant states that, on July 2, 2011, he sent an e-mail to Plaintiff informing Plaintiff that Plaintiff was “number 1 again on Google,” a publicly accessible Web-site. And again, as in his answer, Defendant states that photos of Plaintiff “were picked up and publicly displayed at the websites of third parties.” On his Face-book page, Defendant “periodically posted links to clothed photos of Plaintiff ... as well as fully and semi or partially nude photographs of Plaintiff he had taken, frequently linking directly to fully nude photographs of Plaintiff....”

Defendant alleges that, “[p]ursuant to the rights granted in the standard modeling release signed by Plaintiff on March 18, 2010, and on May 16, 2010,” he “registered and told Plaintiff that he had registered the domain name jamestharpe.net,” but that he “then gave Plaintiff access to and ownership of the website which they built at jamestharpe.net together during December 2010 and January 2011....”

Defendant alleges that, after Plaintiff refused to attend a photo session in June 2011, he “told Plaintiff he would no longer work with him as a model,” and “asked that Plaintiff return the professional modeling portfolio (large book), business cards and composite cards (comp cards) which Defendant had spent approximately $7000.00 to have printed for Plaintiff.” Defendant states that he also “told Plaintiff not to use any of Defendant’s copyrighted photographs, specifically those photographs Defendant had taken of Plaintiff, or Defendant would enforce his legal rights in them.”

As described at length in the answer, the counter-complaint states — at length— that much trivial drama between the parties followed, some of it even involving Plaintiffs mother, but the co-dependent relationship between the parties continued, with Defendant again photographing Plaintiff and giving him things, such as train tickets.

Also as described at length in the answer, the counter-complaint provides a lengthy description of the involvement of Plaintiffs employer in the parties’ disagreement. Defendant alleges that a man from another soccer club in the area, whose Internet Protocol (“IP”) address “Defendant was able to trace ... to his place of employment,” was making “unauthorized and infringing downloads of Defendant’s copyrighted photographs which he was making from Plaintiffs website.” Defendant states that he “wrote an email to [the alleged infringer’s] employer concerning the infringement of his copyrighted photographs and [the] employer responded by eventually indicating that it would cease and that all infringing copies would be destroyed per Defendant’s demand.”

As in the answer, Defendant provides lengthy allegations describing his purported attempts to cooperate with Plaintiffs (and Plaintiffs employer’s) requests that Defendant take .down nude photographs of Plaintiff that were linked to Plaintiffs employer. However, Defendant thereafter again “worked with Plaintiff in late September and early October 2011,” with Defendant providing some degree of assurance to Plaintiff that a proposed “fine art” poster and postcard project would “not include genitalia.” But, “in the second half of October 2011,” the parties’ “relationship worsened,” when “Defendant • offered Plaintiff a modeling opportunity and Plaintiff agreed to do the casting in New York,” but “then with less than twenty four hours notice Plaintiff quit the casting.”

Defendant alleges that Plaintiff accused Defendant of having “installed spyware on Plaintiffs phone.” Defendant acknowledges that he had obtained “Plaintiffs computer IP address at home” when

Plaintiff had accessed Defendant’s website from Plaintiffs home while they spoke on .the telephone, and while they spoke Defendant observed Plaintiffs login to Defendant’s website and his website had saved Plaintiffs unique home computer IP address; Defendant knew Plaintiffs computer IP address at .work ... from electronic mail headers on electronic mail sent by Plaintiff from his [work] email address; Defendant also knew Plaintiffs laptop computer’s unique signature and observed that Plaintiff sometimes tried to access various websites related to Defendant and Plaintiff, as well as download photos from Defendant’s websites, from a third computer IP address ....

(Emphasis added; IP addresses elided.) Defendant provides an IP address for this alleged “third computer,” but provides only his bald allegation to link it to Plaintiff.

Significantly, Defendant alleges that, “[d]uring November and early December 2011,” “there were a number of downloads of Defendant’s photographs from Plaintiffs home IP address and from Plaintiffs work IP address.” However, although Defendant cites IP addresses left and right, and has submitted a sheaf of submissions documenting data accessed and access denied, in this instance “Defendant’s server company had a server crash and lost the server logs for November 2011 and early December 2011.” Thus Defendant again provides only his own bald allegation that, “[djuring November and early December 2011,” “there were a number of downloads of Defendant’s photographs from Plaintiffs home IP address and from Plaintiffs work IP address.”

Defendant states that, on December 8, 2012, he wrote a letter informing Plaintiff that his

limited license to use (including but not limited to: copying, publicly displaying and publicly distributing) Rudy K photographs and digital files is hereby terminated. That means that all modeling and or related photographs taken and/or owned by me must be removed from your portfolio, publications, handout, business cards and communications, as well as from all websites.

It appears that this letter, which Defendant characterizes as a “cease and desist letter,” is actually dated December 8, 2011.

Defendant maintains that, after writing this letter, “attacks” on his Web-site continued, and his “website was frequently subject to hacking attacks which were sometimes traceable back to Lynchburg or Roanoke, Virginia, and sometimes traceable back to” IP addresses that Defendant claims belong to Plaintiff. In support of this allegation, Defendant has submitted “redacted” e-mails and other documents that he has composed.

Defendant alleges that, after writing the cease and desist letter, “one hundred and seventy four (174) unauthorized and infringing downloads of ... fifty-four (54) copyrighted photographs from Defendant’s” publicly accessible “website at ru-dykphotography.com/blog ... were recorded by Defendant and were traceable back to” Plaintiff. Defendant states that these photographs were registered with the Copyright Office on June 1, 2012.

Defendant states that, regarding Plaintiffs display of six of Defendant’s photographs, registered with the Copyright Office on June 21, 2012, on Plaintiffs “models.com” profile, Defendant’s counsel “demanded that ... Plaintiff remove said copyrighted works from Plaintiffs modeling portfolio on November 1, 2012, at which time they were removed.... ”

Defendant acknowledges that he does not know whether his photographs of Plaintiff, “which he alleges ... that Plaintiff has copied and/or displayed without authorization,” have been distributed by Plaintiff, but he alleges that “Plaintiff has told Defendant in the past that others were copying and distributing downloaded copies of copyrighted photographs.” (Emphasis added.)

Among the many repetitions of lengthy material stated in the answer, the counter-complaint states that,

[concerning Plaintiff’s allegation in Exhibit 36 that one of the publicly posted photographs had a “photoshopped erect penis”: a) Defendant took a fully nude photograph of Plaintiff with a semi-erect penis on August 7, 2010; b) Defendant retouched that on August 7, 2010 and in September 2010; c) on August 7, 2010 Defendant uploaded and posted that photo in his “Client Login” gallery on his website at rudykphotography.com, which Plaintiff and hundreds of other people could access; d) in order to enhance that photograph’s commercial quality and value, Defendant retouched various parts of Plaintiff’s body in it, including Plaintiffs abdomen, scrotum (at Plaintiffs specific request because when he viewed the original raw photograph, Plaintiff complained about his droopy scrotum, or as Plaintiff put it, his “tea bag problem”), face, biceps, and penis (again at Plaintiffs request to “make his penis look good to impress girls”); e) Defendant sent an e-mail to Plaintiff on September 3 2010 containing two attachments of Plaintiffs scrotum from the photograph, one without retouching and one with retouching to address what Plaintiff described as his “tea bag problem”, and Defendant asked Plaintiff if he could use the retouched version instead of the original ... f) Defendant also sent a copy of the aforementioned retouched photograph to Plaintiff on November 7, 2010, and in a contemporaneous text message Defendant stated “I was enlarging your chest and biceps using lens correction and voi-laa ur peepee get enlarged as well”, to which Plaintiff replied via text message “Lol, I will get tons of models with a horsecock like that” ...; Defendant further admits that on December 11, 2010, he uploaded, posted and publicly displayed the aforementioned retouched photograph of Plaintiff on his fully accessible public website at rudykphotog-raphy.com/blog, where the photograph has remained on public display from December 11, 2010 until the present, which public display Plaintiff has long been fully aware of....

(Emphasis added; citations elided; otherwise verbatim.)

Defendant states that the parties met and had discussions in January 2012, subsequent to which “Defendant set up orders with a domain name registrar for jimmyth-arpe.net, jimmytharpe.com, and jtharpe. com, which orders automatically went through within a few weeks.”

Defendant again states that he “was well aware of the common situation where models who take nude and fully nude photographs in their youth often come to regret it in later years for a variety of reasons, especially when the photographs are publicly accessible on the internet,” and that “this was a situation Defendant had dealt with in the past with other models and one where often a fair and reasonable sum is usually paid to the rights holder photographer for the rights which the now remorseful model wants to acquire.”

Defendant states that, “[ajround this time” — presumably mid-to late-January 2012 — “in response to numerous requests from Plaintiff, Defendant took down a number of fully nude photos of Plaintiff from his website at rudykphotogra-phy.com/blog, many of which had been up since before Plaintiff worked at CVUS.”

Defendant alleges that,

[d]uring March and April 2012: a) the attacks and hacking directed out of Virginia at Defendant’s website increased until his website was sometimes going down for periods of time; b) Defendant first attempted to redirect internet traffic from Virginia computer IP addresses to Google.com in an effort to stop the damaging attacks on his website but Google com/plained to him and he stopped;

c) next, Defendant made live one of the websites he had recently registered when he and Plaintiff had contemplated a fashion line and apparel business in January 2012, and Defendant redirected Virginia computer IP address traffic to that website jimmytharpe.com in an effort to stop the hacking attacks on his website;

d) when that website began to go down due to the attacks, Defendant made live another one of the websites he had recently registered when he and Plaintiff had contemplated a fashion line and apparel business in January 2012, and Defendant redirected Virginia computer IP address traffic to that website jimmyth-arpe.net from jimmytharpe. com; e) when that website began to go down due to the attacks, Defendant made live the final one of the websites he had recently registered when he and Plaintiff had contemplated a fashion line and apparel business in January 2012, and Defendant redirected Virginia computer IP address traffic to that website jtharpe. com from jimmytharpe.net; f) Defendant posted fully nude photographs of Plaintiff, all of which [he] had already posted publicly on the internet, pursuant to his copyrights in his photographs and the rights and permissions granted to Defendant by Plaintiff in the two standard model releases signed by Plaintiff.

(Emphasis added.)

D.

1. Standard of Review

Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). A district court must “raise [such] lack of subject-matter jurisdiction on its own motion,” without regard to the positions of the parties. Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982); see also Plyler v. Moore, 129 F.3d 728, 731 n. 6 (4th Cir.1997) (“questions concerning subject-matter jurisdiction may be raised at any time by either party or sua sponte by [the] court”) (citing North Carolina v. Ivory, 906 F.2d 999, 1000 n. 1 (4th Cir.1990)). “[C]ourts[ ] ... have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party,” and “when a federal court concludes that it lacks subject matter jurisdiction, the court must dismiss the complaint in its entirety.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citations omitted). The complainant bears the burden of establishing jurisdiction, see Richmond, Fredericksburg & Potomac R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir.1991), and a court may consider evidence outside the pleadings without converting the matter to a summary judgment proceeding, see Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir.2004).

Of significance here, “federal courts are without power to entertain claims otherwise within their jurisdiction” if such claims are, among other things, “devoid of merit.” Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (citations and quotations omitted). As I observed earlier, Defendant’s disregard for the language of Rule 8(a)(2), requiring “a short and plain statement of the claim showing that the pleader is entitled to relief,” is one of those instances where the party has pleaded himself out of court “by pleading facts that show he has no legal claim.”

2. As Pleaded, the Counterclaims Are Devoid of Merit

a. Copyright

Throughout his pleadings, Defendant repeats the following admissions:

• Defendant gave Plaintiff access to the restricted access “Client Login Gallery” section of Defendant’s Website, which was accessible to “hundreds” of people.

• Defendant “frequently” e-mailed “copies of photographs” he had made of Plaintiff to Plaintiff. Defendant “frequently” sent “copies of photographs” he had made of Plaintiff to Plaintiff using other electronic means of delivery, such as text messages. And, “[fjrequently, following a photoshoot, Defendant would send Plaintiff copies of photos Defendant took of Plaintiff[.]”

• Defendant sent photographs of Plaintiff to Defendant’s contacts at various modeling agencies in an effort to obtain modeling work for Plaintiff.

• Defendant publicly displayed photographs of Plaintiff, on his unrestricted access Web-site and on his “Client Login Gallery” (to which he gave Plaintiff access).

• Defendant paid for and gave to Plaintiff modeling necessities, such as a portfolio and comp cards, which were composed of photographs of Plaintiff made by Defendant.

• After a break-up in the relationship between the parties, Defendant intended to rescind the permission — or license — he had granted to Plaintiff to use the photographs. Defendant underwent an apparent change of heart when the parties subsequently reconciled, however tentatively, and Defendant again extended a license to use the photographs, e.g., Defendant returned the modeling portfolio to Plaintiff. There is no allegation or suggestion in the record that any license was expressed in writing.

• Defendant and Plaintiff, working together, posted photographs Defendant made of Plaintiff on a Web-site that Defendant created for Plaintiff, Defendant having obtained the domain name for Plaintiff. Defendant “gave access to and ownership of’ this Web-site to Plaintiff.

• Defendant’s photographs of Plaintiff “were picked up and publicly displayed at the websites of third parties.”

• Defendant’s photographs of Plaintiff could be obtained using the Google search engine.

• Defendant made a “head shot” photograph for Plaintiffs use on Plaintiffs employer’s Web-site.

• Defendant and Plaintiff worked together to use Defendant’s photographs of Plaintiff to promote Plaintiff “as a fitness model” and for