United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-20188 FILED September 18, 2024 ____________ Lyle W. Cayce Michel Keck, Clerk

Plaintiff—Appellant/Cross-Appellee, Mathew Kidman Higbee; Higbee & Associates,

Cross-Appellees,

versus Mix Creative Learning Center, L.L.C.; Jacqueline P. Kenneally; Does 1 through 10 inclusive,

Defendants—Appellees/Cross-Appellants. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21-CV-430 ______________________________ Before Jones, Smith, and Ho, Circuit Judges. Edith H. Jones, Circuit Judge: Defendant–Appellee Mix Creative Learning Center is an art studio that offers art lessons to children. In 2020, Mix Creative began selling “art kits” online so students could learn at home during the pandemic. One of these kits reproduced artworks from Plaintiff–Appellant Michel Keck’s Dog Art series. Keck sued Mix Creative and its proprietor for copyright and Case: 23-20188 Document: 104-1 Page: 2 Date Filed: 09/18/2024

No. 23-20188

trademark infringement and sought enhanced statutory damages for willful infringement. The district court found that the fair use defense to copyright infringement applied and granted summary judgment to Mix Creative on the copyright claim. It also granted summary judgment to Mix Creative on the trademark claim, although Mix Creative had not sought summary judgment on that claim. Following summary judgment, the district court awarded fees and costs to Mix Creative under 17 U.S.C. § 505, but it declined to hold Keck’s trial counsel jointly and severally liable for the fee award under 28 U.S.C. § 1927. We conclude that (i) the fair use defense to copyright infringement applies since Mix Creative’s use was transformative and unlikely to cause harm to markets for Keck’s copyrighted works; (ii) any error in the district court’s sua sponte grant of summary judgment on the trademark claim was harmless; and (iii) the district court did not abuse its discretion in either fee ruling. The district court’s judgment is AFFIRMED. I. Background Michel Keck is a multi-media artist who has registered the works from her Dog Art series with the United States Copyright Office. She has also registered her name, “Michel Keck,” with the United States Patent and Trademark Office. Defendant Jacqueline Kenneally is the sole proprietor of Mix Creative Learning Center. Mix Creative is an art studio in Houston, Texas, that has offered children’s art lessons since 2005. In 2020, Mix Creative began selling art kits online for at-home learning during the pandemic. These kits included printed-out PowerPoint slides featuring an artist’s biography and artwork samples, along with a lesson plan and supplies for students to make their own art in the artist’s style. Students also had the opportunity to join a Zoom call with Kenneally to create art under her guidance.

2 Case: 23-20188 Document: 104-1 Page: 3 Date Filed: 09/18/2024

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Keck was one of the arti