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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaskaland.com, LLC v. Cross (9/25/2015) sp-7057

Alaskaland.com, LLC v. Cross (9/25/2015) sp-7057

        Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                 

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



ALASKASLAND.COM, LLC,                                  )  

                                                       )    Supreme Court No. S-15270  

                          Appellant,                   )  

                                                       )    Superior Court No. 3AN-12-04799 CI  

         v.                                            )  

                                                       )    O P I N I O N  

KEVIN CROSS d/b/a CROSS &                              )  

ASSOCIATES and SALMAN GROUP ;                          )    No. 7057 - September 25, 2015  

WILLIAM W. JACQUES; MATT                               )  

DIMMICK; and KELLER WILLIAMS                           )  

REALTY - ALASKA GROUP,                                 )  

                                                       )  

                          Appellees.                   )  

                                                       )  



                 Appeal from the Superior Court of the State of Alaska, Third  

                                                               

                 Judicial District, Anchorage, Frank A. Pfiffner, Judge.  



                 Appearances:      Brian   J.   Stibitz,   Reeves   Amodio   LLC,  

                 Anchorage,   for   Appellant.      Matthew   W.   Claman   and  

                 James  B.  Stoetzer,  Lane  Powell  LLC,  Anchorage,    for  

                                                     

                 Appellees.  



                 Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                     

                 Bolger, Justices.  



                 WINFREE, Justice.  



I.       INTRODUCTION  



                 Using three photographs taken from a neighboring subdivision's marketing  



materials - including one portraying the subdivision's stylized entrance sign - a realtor  


----------------------- Page 2-----------------------

group listed adjacent property for sale on a multiple listing service website.  The listing  



also contained a property appraisal stating that (1) based on plat-related information,  



existing legal access to the property might compromise the neighboring subdivision's  



gated community perimeter fencing, and (2) based on statements made to the appraiser  



                                                                    

by employees of the local electric association, the neighboring subdivision's electric  



                                                             

service might be subject to legal issues.   The subdivision's developer then sued the  



realtors for misappropriation of the photos, trade name infringement, and defamation.  



The  superior  court  granted  summary  judgment  to  the  realtors  and  awarded  them  



                                                                                           

enhanced attorney's fees; the developer appeals.  Because there are no material factual  



disputes  and  the  realtors  are  entitled  to  judgment  as  a  matter  of  law,  we  affirm  the  



                                                                                                           

superior court's grant of summary judgment (although in part on grounds not relied upon  



                                                                                       

by the superior court).  And because we cannot conclude that the superior court abused  



its discretion in awarding attorney's fees, we affirm that decision as well.  



II.      FACTS AND PROCEEDINGS  



         A.        Facts  



                   Alaskasland.com , LLC (Alaskasland) is the owner-developer of a gated  



subdivision located between the Parks Highway and the Susitna River.  Asbury Moore  



                                                                                                      

is Alaskasland's general manager, and Duane Mathes is its real estate broker.  Since  



                                                                                             

2008 Alaskasland has marketed its subdivided lots under the name "Susitna Shores," but  



                                                                                               

the name was not registered.  Alaskasland constructed a prominent concrete sign at the  



subdivision entrance featuring the Susitna Shores name and logo, and it has used the  



                                                

name and logo on its website and in printed marketing materials.  Alaskasland estimates  



                                                                                   

it spent almost 900 hours and approximately $160,000 on developing and distributing  



                                                                                             

promotional materials for Susitna Shores.  Of the subdivision's 37 lots, 15 had been sold  



by the time the superior court granted summary judgment in July 2013; the most recent  



sale was in May 2011.  



                                                           -2-                                                    7057
  


----------------------- Page 3-----------------------

                   In 2009 Bryan and Tara Goode inherited property (Goode property) from  

                                                                   



Florence Sawby.  The Goode property is bounded on three sides by the Susitna Shores  

                                                                               



subdivision and on the fourth by the Susitna River.  Alaskasland had been interested in  

                                                                                                             



purchasing the property and had unsuccessfully offered Sawby $45,000 for it in 2007.  



                    Gregory Brooker appraised the Goode property and valued it at $150,000.  

                                                                                                             



His appraisal noted that "[t]he electric service in the [Susitna Shores] subdivision may  

                                                                                                       



be  subject  to  legal  issues  due  to  the  lack  of  [Matanuska  Electric  Association]  



participation in construction of the infrastructure."  The appraisal also noted that "the  

                                                



[Goode property] has an undeniable access right that crosses the access to [the Susitna  



                                                         

Shores] subdivision boat ramp - and that access could be developed and probably left  



open, thereby defeating the gated subdivision."  



                                                                                          

                   In August 2011 the Goodes listed their property for sale with realtor Kevin  



Cross, associated with Keller Williams Realty - Alaska Group (Keller Williams), for  



                                                                                                             

$146,000.  Because the Goodes did not provide Cross any photographs of the property,  



his assistant located on the internet photographs that came from Alaskasland's website  



                                                                                                  

depicting:    Susitna  Shores'  entrance  sign  with  its  stylized  logo; Mt.  McKinley;  and  



Moore fishing with his family on a river.  Mathes had taken the first two photographs  



                                            

himself and had obtained the third from Moore.  The photographs were appended to the  



Goode property listing on the Alaska Multiple Listing Service (MLS) website.  MLS  



                                                                                                           

maintains a comprehensive online database of real estate listings on both a realtor-only  



                                             

website, called the FlexMLS site, and a separate publicly accessible site.  Brooker's  



appraisal also was appended to the Goode property listing on the FlexMLS website; it  



was never available on the publicly accessible MLS website.  



                   In early November 2011 Mathes discovered that the Goode property was  



listed for sale and informed Moore.  After viewing the MLS listing Moore determined  



                                                           

that the three Alaskasland photographs were being used to market the Goode property,  



                                                             -3-                                                       7057
  


----------------------- Page 4-----------------------

and Mathes promptly notified MLS that Cross was improperly using these photographs.  



                                                                              

Mathes  then  contacted  Cross  to  express  interest  in  purchasing  the  Goode  property.  



                                               

Mathes asked Cross for a copy of the appraisal, which Cross immediately sent to him.  



                                                                             

Mathes apparently also viewed the appraisal through the FlexMLS site at various times.  



Mathes then conveyed to Cross an offer from Moore to purchase the Goode property for  



$95,000, which the Goodes promptly rejected.  



                   In response to the information received from Mathes, MLS confirmed to  



Cross that the photographs appended to the Goode property listing "were taken from  



another licensee[']s listing and website" and that MLS was removing the photographs  



                                                             

from the listing.  In mid-December Cross notified Mathes that he had been informed the  



                                                                            

photographs were still viewable through other real estate listing sites due to a flaw in  



                                                                                                     

MLS's  system,  and  that  Cross  had  contacted  the  other  sites  to  request  that  the  



photographs be removed immediately.  Cross stated he was "assured that this is being  



                                                                                     

taken care of," and Moore later confirmed he could not find the photographs on any other  



website after December 2011.  



                                       

                   Because the Goodes had received only the one offer from Moore, they  



decided  to  cancel  their  listing  in  mid-December  2011.    Shortly  thereafter  William  



                                                                             

Jacques,  the  Broker  in  Charge  at  Keller  Williams,  notified  Cross  that  the  appraisal  



                                                                                 

remained a part of the cancelled listing on the FlexMLS site and that Moore and Mathes  



                                       

wanted it removed. Cross apparently was under the impression that cancelling the listing  



                                                                                   

had removed the appraisal from the site.  At some point Cross contacted MLS "to see  



what had to be done" to remove the appraisal.  MLS removed the appraisal in early May  



2013.  



          B.       Proceedings  



                   In  January  2012  Alaskasland  filed  suit  against  Cross,  Jacques,  Keller  



Williams  and  another  Keller  Williams  employee,  and  the  Goodes  (collectively  the  



                                                             -4-                                                      7057
  


----------------------- Page 5-----------------------

Realtors).  The complaint, as later amended, alleged several common law causes of  



action:    (1)  "injunction"  for  harm  from  posting  the  photographs  and  appraisal;  

                                               



(2) misappropriation of Alaskasland's advertising materials, specifically the photographs  



                              

from Alaskasland's website; (3) trademark and trade name infringement through use of  



                             

the Susitna Shores sign photograph; (4) publication of false and defamatory information  



                 

by posting the Brooker appraisal; (5) interference with existing and prospective business  



relationships;  (6)  conspiracy  to  defraud  by  false  representations;  and  (7)  negligent  



                                                                                                          

supervision of Cross and vicarious liability on the part of Keller Williams employees and  



the Goodes.  Alaskasland sought a permanent injunction and damages.  



                    The Realtors moved to dismiss all claims.  In its opposition Alaskasland  



                                                                            

notably waived any copyright, trademark violation, and unfair competition claims under  



state and federal statutes.  The superior court denied the motion to dismiss.  



                   Alaskasland moved for partial summary judgment on its misappropriation,  



trade name infringement, defamation, and negligent supervision claims.  The Realtors  



opposed and cross-moved for summary judgment on all claims.  After being granted  



permission  during  oral  argument,  the  parties  supplemented  the  record  with  expert  



                          

reports.  Shortly thereafter Moore reached an agreement with the Goodes to purchase  



their property for $155,000.  



                                                                                        

                    The superior court granted summary judgment to the Realtors on all claims.  



                                    

The court dismissed the "injunction" claim as moot because by then the photographs and  



                                                                    

the appraisal had been removed from the MLS website.  The court noted that Alaska has  



                                                                       

not yet recognized the tort of misappropriation, but that even if it did, Alaskasland had  



failed  to  satisfy  what  the  court  considered  the  tort's  elements:    "1)  time,  labor,  and  



                                                                          

money  expended  in  the  creation  of  the  thing  appropriated;  2)  competition;  and  



                                                             -5-                                                       7057
  


----------------------- Page 6-----------------------

                                                               1  

3) commercial damage to the plaintiff."                           The court implied that at least some time and   



labor were expended in creating the photographs and concluded that the parties were in   



competition, but held that "[t]his claim truly fails upon the third element, damages."                                             The  



court stated:  "Alaskasland has failed to provide a scintilla of evidence that any purchaser  



other than Mathes and Moore saw the photos."  



                                             

                     Turning to the trade name and trademark infringement claims, the superior  



                           

court explained that such claims require establishing both that:  (1) "the symbol [is]  



recognizable  to  the  public  in  a  way  that  distinguishes  it  as  unique  to  a  particular  



business"; and that (2) "the defendant's actions . . . cause a likelihood of confusion  

among the relevant buyer class."2  Because the name "Susitna Shores" is geographically  



descriptive, the first prong required Alaskasland to show that the name has secondary  

                                                                                                   

meaning - a mental connection between the trade name and a single business.3                                                       The  



court found persuasive the Realtors' argument that Alaskasland's failure to sell at least  

                    



half its lots - and none in the prior two years - evidenced that its marketing efforts had  



                                                                                                           

failed to produce a secondary meaning in the minds of the public.  The court therefore  



                                                                                            

granted  summary  judgment  dismissing  the  trade  name  and  trademark  infringement  



claims.  



                                            

                     The  superior  court  then  explained  that  a  defamation  claim  requires  



establishing  four  elements:    (1)  "a  false  and  defamatory  statement  of  or  concerning  



                                                                                          

plaintiff"; (2) "unprivileged publication to a third party"; (3) "fault amounting to at least  



           1         See Int'l News Serv. v. Associated Press, 248 U.S. 215, 239-40 (1918).  



           2         See Alderman v. Iditarod Props., Inc., 32 P.3d 373, 382 (Alaska 2001).  



           3         See id. at 384-85.  



                                                                  -6-                                                            7057
  


----------------------- Page 7-----------------------

                                                                                                            4  

negligence";  and  (4)  "either  per  se  actionability  or  special  damages."     The  court  



                                                                                                   

suggested there was a genuine issue of fact whether the appraisal contained false and  



                                                                       

defamatory statements.  But it held there was no genuine issue as to publication because  



                                                                                              

"Alaskasland has yet to identify a single individual other than Mathes and Moore [to  



                                  

whom] the statements were published."  Without addressing the damages element, the  



court granted summary judgment to the Realtors on the defamation claim.  



                                                  

                   Noting that a claim for interference with business relationships requires a  



                                                                      5 

potential business relationship with a third party,  but that Alaskasland had not identified 

                                                                                    



one, the superior court granted the Realtors summary judgment on this claim.  The  court  



                                                                                                              

then explained that Alaskasland's conspiracy to defraud claim alleged that the Realtors  



       

had  inflated  the  Goode  property's  purchase  price  to  extract  more  money  from  



Alaskasland.    But  because  Moore  had  recently  purchased  the  Goode  property  for  



$155,000,  $9,000  more  than  the  allegedly  inflated  price  for  which  the  Realtors  had  



advertised it, and because Alaskasland had failed to produce evidence of an unlawful act  



and evidence of an agreement, the court granted the Realtors summary judgment on this  



                                                                                                               

claim.  Because the court dismissed all the tort claims against Cross, there could be no  



                                                                                                        

liability  for  negligent  supervision  or  vicarious  liability  for  Keller  Williams  or  its  



employees; the court granted summary judgment on that claim as well.  



                    The parties then stipulated to dismissing all claims against the Goodes.  



                                     

Alaskasland moved for reconsideration of the grant of summary judgment, arguing in  



part that the court had failed to consider Alaskasland's expert reports or evidence of web  



hits to the Goode property MLS listing when the court concluded that Alaskasland had  



          4         See State v. Carpenter, 171 P.3d 41, 51 (Alaska 2007).  



          5         See Mattingly v. Sheldon Jackson Coll., 743 P.2d 356, 363 (Alaska 1987).  



                                                             -7-                                                           7057  


----------------------- Page 8-----------------------

not suffered damages and that the appraisal had not been published.  The court denied  



the motion.  



                    The Realtors moved for attorney's fees, and the superior court awarded  



approximately  $55,500  under  Alaska  Civil  Rule  82,  about  35%  of  the  $158,688  in  



reasonably incurred actual fees.  The court explained that it had varied the fee award  



upward under Rule 82(b)(3)(A), (E), (G), and (K) because Alaskasland's "claims lacked  



                                                                          

merit and because [it] unnecessarily increased the cost of litigation through the extent of  



                                                               

the asserted claims and the motion practice that necessarily resulted from these numerous  



claims."  



                                                                

                    Alaskasland          appealed         the     grant      of    summary          judgment         on      its  



misappropriation,  trade  name  infringement,  defamation,  and  negligent  supervision  



                                                                                                             

claims,  as  well  as  the  attorney's  fees  award.    We  issued  an  order  in  August  2014  



                                

requiring the parties to be prepared to discuss at oral argument "whether Alaskasland's  



misappropriation claim for use of its photographs is preempted by section 301 of the  

federal 1976 Copyright Act."6  



III.      STANDARD OF REVIEW  



                                                                                                 7  

                                                                                                    We may affirm the  

                    "We review grants of summary judgment de novo." 



                                                                                                                      8  

grant of summary judgment on alternative grounds if supported by the record.   "We  



          6         Our order cited the Copyright Act, 17 U.S.C.  102(a)(5), 106(1), 301(a)       



(2012) and two cases:  Fournier v. Erickson , 202 F. Supp. 2d 290, 299 (S.D.N.Y. 2002)     

and Henry v. Nat'l Geographic Soc'y , 147 F. Supp. 2d 16, 21 (D. Mass. 2001).  



          7  

                                                                                                      

                    Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 516 (Alaska 2014).  



          8         See Wiersum v. Harder, 316 P.3d 557, 563 (Alaska 2013).  



                                                              -8-                                                        7057
  


----------------------- Page 9-----------------------

review for abuse of discretion both the determination of prevailing party status and the  

                                                                 

award of attorney['s] fees."9  



IV.	       DISCUSSION  



           A.	        The Federal Copyright Act Preempts Alaskasland's Misappropriation  

                      Claim  As  It  Relates  To  The  Photographs  Of  Mt.  McKinley  And  

                      Moore's Family Fishing.  



                      1.	        Courts  apply  a  two-prong  analysis  to  determine  if  Federal  

                                 Copyright Act preempts state law claims.  



                      Section  301  of  the  1976  Copyright  Act  preempts  state  law  claims  



attempting  to  vindicate  "legal  or  equitable  rights  that  are  equivalent  to  any  of  the  



exclusive rights within the general scope of copyright" and arising from a work "within  

                                                                                           

the  subject  matter  of  copyright."10  

                                                              Congress  enacted  section  301  in  reaction  to  the  

                                                                                                                      



"anachronistic, uncertain, impractical, and highly complicated dual system" of copyright  



law that had developed around the premise that unpublished works deserved common  

                                                                                                                           11  Congress  

law copyright whereas published works were entitled to statutory copyright. 



therefore intended section 301 to produce "national uniformity" in the law of copyright  

                                                                                                                           



to better effectuate its constitutional purpose:  "To promote the progress of science and  

                                                             

useful arts."12  



           9          Nautilus Marine Enters. Inc. v. Exxon Mobil Corp. , 332 P.3d 554, 557  



(Alaska 2014).  



           10         17 U.S.C.  301(a) (2012).                    Subsection 301(b) provides in part:                         "Nothing  



in this title annuls or limits any rights or remedies under the common law or statutes of             

any State with respect to . . . activities violating legal or equitable rights that are not     

equivalent  to  any  of  the  exclusive  rights  within  the  general  scope  of  copyright  as  

specified by section 106[.]"  



           11         See H.R.  REP .  NO .  94-1476, at 129 (1976).  



           12  

                                                                                                          

                      U.S. Const. art. I,  8, cl. 8. See also H.R. REP . NO . 94-1476, at 129 (1976)   

                                                                                                                        (continued...)  



                                                                     -9-	                                                             7057
  


----------------------- Page 10-----------------------

                                   

                    Pursuant to this constitutional authority, Congress in 1790  

                    enacted the first federal patent and copyright law and ever  

                    since that time has fixed the conditions upon which patents  

                    and copyrights shall be granted.  These laws, like other laws  

                                                                      

                    of  the  United  States  enacted  pursuant  to  constitutional  

                                                        

                    authority, are the supreme law of the land.  When state law  

                    touches upon the area of these federal statutes, it is "familiar  

                                                       

                    doctrine" that the federal policy "may not be set at naught, or  

                                                                           [13] 

                    its benefits denied" by the state law.  



                                                                             

                    Courts conduct a two-prong analysis modeled on section 301 to determine  



                                                                                         14  

whether  the  Copyright  Act  preempts  a  state  law  claim.       The  first  prong  of  the  



preemption analysis determines whether the work at issue "come[s] within the subject  



                                                                                                       15  

                                                                                                           Section 102 lists  

matter of copyright as specified by sections 102 and 103" of the Act. 



                      

categories of works "fixed in any tangible medium of expression" that are eligible for  



          12        (...continued)  



("One of the fundamental purposes behind the copyright clause of the Constitution, as  

                                                                                                       

shown in Madison's comments in The Federalist, was to promote national uniformity and  

to avoid the practical difficulties of determining and enforcing an author's rights under  

                                                                                                

the differing laws and in the separate courts of the various States.  Today, when the  

methods for dissemination of an author's work are incomparably broader and faster than  

                                             

they were in 1789, national uniformity in copyright protection is even more essential  

                                                                                                  

than it was then to carry out the constitutional intent.").  



          13  

                                                                                        

                    Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 228-29 (1964) (citations  

omitted) (quoting Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173, 176 (1942)).  



          14  

                                                                                                         

                    See Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 848 (2d Cir.  

                                                                                  

1997); Del Madera Props. v. Rhodes & Gardner, Inc. , 820 F.2d 973, 976 (9th Cir. 1987),  

overruled on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).  



          15  

                                                                                                    

                     17 U.S.C.  301(a).  See also Nat'l Basketball Ass'n, 105 F.3d at 848 ("The  

subject  matter  requirement  is  met  when  the  work  of  authorship  being  copied  or  

misappropriated 'falls within the ambit of [copyright] protection.' " (alteration omitted)  

                                                            

(quoting Harper & Row, Publishers, Inc. v. Nation Enters. , 723 F.2d 195, 200 (2d Cir.  

                                       

1983), rev'd on other grounds, 471 U.S. 539 (1985))); Del Madera , 820 F.2d at 976.  



                                                              -10-                                                         7057
  


----------------------- Page 11-----------------------

copyright protection, such as literary, musical, dramatic, choreographic, and pictorial  



                                  16  

"works  of  authorship,"              and  section  103  extends   copyright  protection  to  certain  

"compilations and derivative works."17  



                                                                       

                   The second prong of the preemption analysis focuses on whether the state  



                                                                                                 

law claim attempts to vindicate the "exclusive rights" available under section 106 of the  

Copyright Act,18 establishing the rights to "reproduce" the work, "prepare derivative  



works"  based  upon  it,  "distribute  copies"  of  it,  and  "display  the  copyrighted  work  



              19  

                                                                                                  

publicly."       The second prong ensures that the state law claim attempts to vindicate some  



right  different  in  kind  from  those  provided  by  the  Copyright  Act:    "To  survive  



                                                                                            

preemption, the state cause of action must protect rights which are qualitatively different  



from the copyright rights.  The state claim must have an 'extra element' which changes  



                                  20  

                                      Whether the possessor of a copyrightable work registers for  

the nature of the action." 



                                                                                        21 

                                                                                            Before oral argument  

a copyright has no bearing on section 301's "preemptive effect." 



         16        17 U.S.C.  102(a).  



         17        17 U.S.C.  103.  



         18        17 U.S.C.  301(a).  



         19        17 U.S.C.  106.  



         20       Del Madera , 820 F.2d at 977 (quoting Mayer v. Josiah Wedgwood & Sons,  



Ltd. , 601 F. Supp. 1523, 1535 (S.D.N.Y. 1985)); see also Nat'l Basketball Ass'n , 105  

F.3d  at  850  ("[C]ertain  forms  of  commercial  misappropriation  otherwise  within  the  

general scope requirement will survive preemption if an 'extra-element' test is met.").  



         21        Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 658 (4th Cir. 1993).  



                                                         -11-                                                    7057
  


----------------------- Page 12-----------------------

in this appeal, we directed the parties' attention to two cases illustrating the Copyright  

                                              

Act's preemptive effect.22  

                                        



                    In    the     superior        court      Alaskasland           repeatedly        characterized           its  



                                                                

misappropriation claim as a common law claim with three elements:  "(1) the plaintiff  



                                                                                                        

must have invested time, money, or effort to extract the information, (2) the defendant  



                                                                                                             

must have taken the information with no similar investment, and (3) the plaintiff must  



                                                                                     23  

                                                                                         Alaskasland concedes that  

have suffered a competitive injury because of the taking." 



          22        One was Henry v. National Geographic Society , 147 F. Supp. 2d. 16 (D.  



Mass. 2001).  In that case a photographer contracted to provide photographs for a book  

                                                                                                                       

series  then  later  negotiated  a  licensing  fee  for  the  use  of  one  of  the  photographs  in  

                                                                                    

software,  but  the  purchaser  refused  to  negotiate  licenses  for  the  other  photographs  

                      

incorporated into its software.  Id. at 18.  The photographer brought state law claims in  

                                                                                         

federal court, including a conversion claim.  Id.  The district court conducted the two- 

                                                                                                    

prong  analysis  to  determine  whether  the  conversion  claim  was  preempted  by  the  

Copyright Act.  Id. at 20.  After determining under the first prong that photographs are  

                                                                                         

"subject to copyright protection" the district court analyzed under the second prong  

                                                                     

whether   the   conversion   claim   "contain[ed]   an   extra   element   that   render[ed]   it  

                                                                       

'qualitatively  different'  from  a  copyright  claim."    Id.    (quoting  Harper  &  Row,  

Publishers, Inc. v. Nation Enter. , 723 F.2d 195, 201 (2d Cir. 1983),  rev'd on  other  

grounds , 471 U.S. 539 (1985)).  The court reasoned that the conversion claim sought "to  

protect [the] right to reproduce" the photographs, but "[b]ecause  106 [of the Copyright  

                                                                                                             

Act]  also  protects  copyright  owners  from  the  unauthorized  reproduction  of  the  

copyrighted work, the state and federal rights are equivalent, and [the] conversion claim  

                                                

[was] preempted."  Id. at 21.  



                    The other case was Fournier v. Erickson , 202 F. Supp. 2d 290 (S.D.N.Y.  

2002),  also  involving  photographs  and  holding  that  two  state  law  claims  -  unfair  

competition  and  tortious  misappropriation  of  goodwill  -  were  preempted  by  the  

                                                                                            

Copyright Act because both were "grounded solely on the allegation of unauthorized  

copying and subsequent use of [the] . . . photograph," and "neither of the . . . claims  

                                                                                          

contain[ed] or allege[d] an extra element that distinguish[ed] them from the copyright  

infringement claim."  Id. at 298-99.  



          23        BLACK 'S  LAW  DICTIONARY  1088   (9th ed. 2009).    Alaskasland cited this  



                                                                                                            (continued...)  



                                                             -12-                                                        7057
  


----------------------- Page 13-----------------------

we  have  neither  recognized  nor  declined  to  recognize  this  tort,  and  we  express  no  



                                                  

opinion on its place in Alaska law; we assume only for purposes of argument that the tort  



includes the elements Alaskasland posits.  



                   The  gist,  then,  of  Alaskasland's  misappropriation  claim  is  that  the  



                                                                                                   

photographs the Realtors appended to the Goode property listing and posted on the MLS  



                                                                                                  

website, especially the Susitna Shores concrete sign photo, represent the time and money  



Alaskasland   expended   advertising                   the    Susitna   Shores   subdivision.                 Although  



                                                                                     

Alaskasland concedes that creating the photographs "may have cost relatively little," it  



                                                                             

urges us to account for the time it spent promoting the trade name Susitna Shores in  



                                                         

assessing the value of the photographs and argues specifically that the Realtors' use of  



the Susitna Shores sign photo for the Goode property listing was intended "to create the  



                               

impression that [the Goode property] was in fact part of Susitna Shores."  We address  



the contention that the Realtors "passed off" the Goode property as belonging to the  

Susitna Shores subdivision in a separate section.24  



                                                                                  

                   2.	       Alaskasland's photographs come within the subject matter of  

                             copyright.  



                                                                      

                   Under the first prong of the federal copyright preemption analysis, we must  



determine  whether  Alaskasland's  photographs  "come  within  the  subject  matter  of  



                                                                                      25  

                                                                                          Section 102(a)(5) of the  

copyright as specified by sections 102 and 103 [of the Act]."  



Act extends copyright protection to "pictorial, graphic, and sculptural works," and the  



          23       (...continued)  



definition  in  its  opposition  to  the  Realtors'  motion  to  dismiss  and  in  its  summary  

judgment opposition, relied on a similar definition in its motion for partial summary  

                                                                            

judgment, and repeats these three elements to us on appeal.  



          24       See infra Section IV.B.  



          25        17 U.S.C.  301(a).  



                                                           -13-	                                                     7057
  


----------------------- Page 14-----------------------

Act's  definitional  section  plainly  states  that  this  phrase  includes  photographs.26  



Accordingly the first prong of the preemption analysis is met.  



                                                                                  

                    3.	      Alaskasland's misappropriation claim fails the extra-element  

                                         

                             test at least with respect to its photographs of Mt. McKinley and  

                              of Moore's family fishing.  



                    At  oral  argument  before  us  Alaskasland  contended  that,  because  its  



misappropriation claim included an extra element, "the unauthorized use of plaintiff's  



                                                             

goodwill and reputation," it could not be preempted by the Copyright Act.  Alaskasland  



                                                                                                                   

also argued that its misappropriation claim encompassed more than the mere taking of  



                                              

three  photographs,  but  rather  included  the  Realtors'  "free-riding  on  [Alaskasland's]  



                                                                       27  

extensive  advertising  and  marketing  efforts."                            To  promote  the  Susitna  Shores  



          26	       See  17 U.S.C.  101.  



          27        This is similar to the argument in Del Madera Properties v. Rhodes &  



Gardner,         Inc.,     involving        a    real    estate     development            company         that     brought  

misappropriation and unjust enrichment claims based on allegations that a competitor  

                                                                        

had misappropriated a tentative subdivision map, "supporting documents, and [the] time  

and  effort  .  .  .  spent  in  creating  the  map  and  supporting  documents  and  in  seeking  

approval of the subdivision."  820 F.2d 973, 975-76 (9th Cir. 1987), overruled on other  

                                                                                    

grounds  by  Fogerty  v.  Fantasy,  Inc. ,  510  U.S.  517  (1994).    After  the  development  

                                                                                            

company filed for bankruptcy, another entity acquired the property, "hired the same  

consultants" that the development company had employed, "and developed the property  

                                                                 

according to the Tentative [Subdivision] Map."  Id. at 975.  Conducting the two-part  

preemption analysis, the Ninth Circuit Court of Appeals concluded under the first prong  

                                                                  

that the map itself was copyrightable as a "pictorial [or] graphic" work.  Id. at 976 (citing  

                                                                                                                 

 17 U.S.C.  102).  It then noted that "[e]ffort expended to create the Tentative Map and  

                                                                                                                   

supporting documents is effort expended to create tangible works of authorship," and  

                                                                                                       

"[a]s such, . . . [was] within the scope of copyright protection."  Id. (citing Mayer v.  

Josiah Wedgwood & Sons, Ltd. , 601 F. Supp. 1523, 1535 (S.D.N.Y. 1985)).  Turning to  

                                                                                     

the second prong - the  extra-element test - the court noted that the development  

company's allegation that its former employee had breached her fiduciary duty by giving  

                                                                                              

the map to its competitor did not "change[] the nature of [its] action" but rather simply  

                                                                                 

                                                                                                           (continued...)  



                                                             -14-	                                                      7057
  


----------------------- Page 15-----------------------

subdivision, Alaskasland allegedly spent nearly $45,000 on advertising, including the  



                                                                       

distribution of 50,000 informational postcards to potential buyers, and another $40,000  



                                                                                                      

to create the concrete Susitna Shores subdivision sign, efforts that required nearly 900  



                                                                                                                      

hours of labor. Although Mathes shot the photo of the Susitna Shores sign and the photo  



                             

of Mt. McKinley, and obtained from Moore the photo of Moore's family fishing on the  



Susitna River, Alaskasland argues that these three photographs are infused with the  



                                                                                                                      

extensive  time  and  money  it  expended  in  marketing  Susitna  Shores.                                             But  the  



                                                                                                                             

misappropriation of "sweat equity" expended in the creation and advertisement of a  



                                                                                                          

copyrightable work is "precisely the type of misconduct the copyright laws are designed  



                           28  

                                                                                          

to guard against."              Accordingly Alaskasland's assertion that its photographs are the  



                                          

product of extensive effort and investment does not save its misappropriation claim, at  



          27        (...continued)  



restated a copyright claim.  Id. at 977.  Accordingly the "unfair competition claim for  

misappropriation of . . . time and effort expended in producing the Tenative map and  

                                                                                                                       

supporting documents [was] preempted" by the Copyright Act.  Id.  



          28         Wedgwood, 601 F. Supp. at 1535.  In  Wedgwood an artist alleged that a  

                                                                                                                           

pottery company wrongfully misappropriated "her time, talent[,] and effort" by copying  

                                                                                                                   

her  design.    Id.  at  1526,  1535.    The  district  court  determined  that  the  artist's  claim  

                          

sounded  in  misappropriation  because  she  sought  to  protect  against  the  company's  

"competing use of a valuable product or idea [she had] created . . . through investment  

                                                                                                     

of time, effort, money[,] and expertise."  Id. at 1534 (citation omitted).  Concluding  

under the preemption analysis's first prong that the design fell "within the subject matter  

                                                                                              

of  the  copyright  laws,"  id.  at  1532,  the  court  then  analyzed  whether  the  artist's  

misappropriation claim "contain[ed] an 'extra element' [to] qualitatively distinguish[]"  

                                                             

it from rights provided under copyright law.  Id. at 1535.  But because the same act -  

                                                                                                             

i.e., reproduction, distribution, or display - would trigger both a misappropriation and  

                                                                                          

a copyright claim, and because the artist's allegation that she had been deprived of her  

sweat  equity  was  "not  qualitatively  different  from  [a]  .  .  .  copyright  infringement  

[claim],"   the   district   court   held   that   the   Copyright   Act   preempted   the   artist's  

misappropriation claim.  Id. at 1535-36.  



                                                              -15-                                                         7057
  


----------------------- Page 16-----------------------

least with respect to the mountain photo and the fishing photo, from preemption under  

the Copyright Act.29  



                                                          

                   Alaskasland defended its misappropriation claim in the superior court by  



                                                                                          

arguing that the taking of the three photos included taking  "the  unique and stylized  



             

version of the name 'Susitna Shores' embodied in [the photograph of the subdivision]  



sign," into which Alaskasland had expended considerable time and money.  At oral  



                              

argument before us Alaskasland stated that its misappropriation claim encompassed not  



                                                       

only the taking of the three photos, but also the misappropriation of its "advertising  



efforts . . . because [it] spent a lot of money and worked really hard to create [Susitna  



                                                                                                           

Shores'] goodwill and reputation."  It did not argue to the superior court, nor to us, that  



                                                                                                       

the generic photograph of Mt. McKinley or the photograph of Moore's family fishing on  



                                                                            

the banks of the Susitna, both of which the Realtors used to market the Goode property,  



                                                             

somehow embody the sweat equity and money it expended in marketing the Susitna  



Shores subdivision.  It indisputably acquired the photographs at little cost, and asserts  



          29       Numerous cases concerning reproduction of photographs have held that the  



Copyright Act preempted state law misappropriation claims because the state law claims  

                                                                                                                

lacked  an  extra  element.    See,  e.g., Levine  v.  Landy ,  832  F.  Supp.  2d  176,  191-92  

(N.D.N.Y. 2011) (holding Copyright Act preempted photographer's misappropriation  

claim when claim did not have extra element, such as breach of fiduciary duty); CoStar  

                                                                           

Grp. Inc. v. LoopNet, Inc., 164 F. Supp. 2d 688, 691-92, 712-14 (D. Md. 2001) (holding  

                                                                                                   

misappropriation claim by real estate information service provider against website using  

service's photographs was preempted by Copyright Act because claim had no extra  

element); Deo v. Gilbert , No. 260847, 2005 WL 2323808, at *1, *5 (Mich. App. Sept.  

22, 2005) (per curiam) (holding in suit between sellers of historic photographs Copyright  

                                                                                  

Act   preempted   state   law   claim   based   on   "right   to   exclusive   reproduction"   of  

photographs); Editorial Photocolor Archives, Inc. v. Granger Collection , 463 N.E.2d  

365,  366,  368  (N.Y.  1984)  (holding  in  suit  between  film  and  photograph  archive  

                        

companies that Copyright Act preempted misappropriation claim and "[p]laintiffs could  

not, by miscasting their causes of action, secure the equivalent of copyright protection  

                                                                                             

under guise of State law").  



                                                            -16-                                                       7057
  


----------------------- Page 17-----------------------

comparable stock photos would have cost under $5,000, a sum far less than the $100,000  

                                                                                                



in  damages  it  claims  to  have  suffered  from  the  Realtors'  misappropriation  of  its  

                                                                                                                       



photographs.  



                                                                                                     

                    And in explaining the nexus between its photographs and its advertising  



                                                                                                           

costs, Alaskasland stresses that the Realtors must have seen "value in the use of the  



                                                                                                                

'Susitna Shores' logo and likeness in marketing their own property, or else they would  



                                                                 

not have used the photos and logo to market the Goode Property."  But Alaskasland does  



                                                                                                                

not further articulate its argument that its photo of a mountain and its photo of a family  



                          

fishing represent the time and effort it expended in marketing Susitna Shores.  And even  



                                                  

if time, energy, and effort were  expended in the creation of these two photographs,  

                                                                                                                    30  With  

protection of this exertion falls exclusively under the ambit of the Copyright Act. 



respect at least to these two photographs, Alaskasland offers no "extra element" to save  



its  misappropriation  claim  from  preemption:    it  simply  claims  that  they  were  taken  



"without permission" and that Alaskasland had circulated them to the public before.  



Because  photographs  come  within  the  subject  matter  of  copyright,  and  because  the  

                                  



Copyright  Act  provides  a  copyright  holder  exclusive  rights  for  their  reproduction,  

                                                         



distribution, and display - the same rights Alaskasland asserts in its misappropriation  



claim - the Copyright Act preempts Alaskasland's misappropriation claims with respect  



                                                                  31  

to the mountain photo and the fishing photo.                          Thus if Alaskasland desired to prevent  



          30        See Del Madera Props., 820 F.2d at 976-77;  Wedgwood, 601 F. Supp. at  



1535.  



          31        17 U.S.C.  101, 102(5), 106(1), (3), (5), 301(a).  See also Ehat v. Tanner,  



780 F.2d 876, 878 (10th Cir. 1985) (holding that even if Utah law recognized tort of  

                                                                                               

misappropriation, such a claim would be preempted by Copyright Act).  



                                                             -17-                                                       7057
  


----------------------- Page 18-----------------------

                                                                                                                          

these photographs from being reproduced and displayed without its permission, it should  

have sought an injunction under the Copyright Act.32  



            B.	         Although The Copyright Act Does Not Preempt A Passing Off Claim,  

                                    

                         Such  A  Claim  Requires  Damages,  Which  Alaskasland  Failed  To  

                         Support  With  Respect  To  The  Photograph  Of  The  Susitna  Shores  

                         Subdivision Sign.  



                        In response to our order directing the parties' attention to the Copyright  



Act's  preemptive  effect,  Alaskasland  contended  at  oral  argument  before  us  that  its  



                                                                                 

misappropriation claim included a claim for "passing off," defined as "selling a good or  



                                                                                                                            33  

                                                                                                                                 Although this is  

service of one person's creation under the name or mark of another." 



the first time Alaskasland styled its misappropriation claim as one for passing off, it has  

                                                                                                 



argued throughout this litigation that by listing the Goode property alongside a photo of  

                                                                                                                                                



Alaskasland's Susitna Shores sign, the Realtors intended "to create the impression that  

                                                                  



[the Goode property] was in fact part of Susitna Shores."  Because a passing off claim  

                                                      



requires an extra element of "misrepresentation or deception," it is not preempted by the  

                                                                                                                  



                            34  

Copyright  Act.                    But  as  with  Alaskasland's  misappropriation  claim,  we  express  no  



            32          To   claim  infringement   one  must   first   register   a  work  with  the  federal  



copyright registry.  See Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 658 (4th                                                 

Cir. 1993) (noting owner of copyrightable work "cannot escape the [Copyright Act's]   

preemptive effect . . . merely by failing to register its copyright").  



            33  

                                               

                        Lamothe v. Atl. Recording Corp. , 847 F.2d 1403, 1406 (9th Cir. 1988)  

                                                                  

(citing Smith v. Montoro, 648 F.2d 602, 604 (9th Cir. 1981)); see also W. Star Trucks,  

                                                                                            

Inc. v. Big Iron Equip. Servs. Inc. , 101 P.3d 1047, 1053 n.29 (Alaska 2004) (noting that  

passing off "action was historically available whenever one trader diverted patronage  

from a rival by falsely representing that his goods were the goods of his rival").  



            34           1  MELVILLE  B.   NIMMER   &   DAVID  NIMMER ,  NIMMER  ON   COPYRIGHT  



 1.01[B][1][e], 1-35 (2015); see also Warner Bros. Inc. v. Am. Broad. Cos.                                                                , 720 F.2d  

231, 247 (2d Cir. 1983) (noting that passing off claims protect "rights [not] equivalent     

                                                                                                                                     (continued...)  



                                                                           -18-	                                                                    7057
  


----------------------- Page 19-----------------------

                                                                                   

opinion whether Alaska recognizes the common law tort of passing off, and assume only  

for purposes of argument its contours as defined by Alaskasland.35  



                     At oral argument Alaskasland urged us to apply the definition of passing  



                                                                               36  

off articulated in Aagard v. Palomar Builders, Inc .                               But even if Alaska recognized the  



           34        (...continued)  



to those protected by copyright and therefore do not encounter preemption") (citation  

                                                          

omitted); H.R. R 

                          EP . NO .  94-1476, at 132 (1976) ("Section 301 is not intended to preempt           

common law protection in cases involving activities such as false labeling, fraudulent  

representation, and passing off even where the subject matter involved comes within the  

                                                                                                

scope of the copyright statute.").  



           35        Alaskasland chose to assert its common law unfair competition claim of  



misappropriation, a claim it suggests encompasses passing off, despite the lack of Alaska  

                                                          

precedent to support such a claim.  We surmise in passing that our case law holding that  

                                                        

the Unfair Trade Practices and Consumer Protection Act (UTPA) does not apply to real  

                                                                                                                

estate sales, see, e.g., Alaska Trustee, LLC v. Bachmeier , 332 P.3d 1, 5-6 (Alaska 2014),  

                                                           

may have informed Alaskasland's choice.  We do not decide whether the UTPA impacts  

Alaskasland's claims because neither party raised the issue.  



           36  

                                                                                     

                     344 F. Supp. 2d 1211 (E.D. Cal. 2004).  In that case a designer and builder  

                                                                                           

of residential homes employed another home designer to resize architectural plans.  Id.  

                                                                                    

at 1213.   The second designer copyrighted some of the plans without permission then  

                                                                                                   

sued      the     original       designer         for    copyright         infringement;            the    original        designer  

                                                                             

counterclaimed  for  misappropriation  and  also  asserted  a  state  law  unfair  business  

practices   claim.     Id.   at   1213-15.      The   district   court   treated   the   common   law  

misappropriation  counterclaim  as  "identical"  to  the  state  law  unfair  competition  

                                           

counterclaim; one element necessary to establishing either claim was a showing that the  

                                                                     

conduct had caused injury.  See id. at 1216. The allegation that customers purchased the  

                                                                                                                        

plans believing they were the first designer's, allowing the second designer to leverage  

                                                                                           

"industry reputation to promote her own business," stated a traditional passing off claim  

                                                                                            

not preempted by the Copyright Act.  See id. at 1216-17.  The court noted that the first  

designer's plans "were recognized nationally for unique and distinctive features."  Id. at  

1213 (internal quotation marks omitted).  The claim survived the extra element test  

                                                                                                                 

because the court found consumers had believed the plans were the first designer's, and  

                    

because the second designer sold many plans to her customers, presumably satisfying the  

                                                                                                                   (continued...)  



                                                                 -19-                                                           7057
  


----------------------- Page 20-----------------------

common law tort of passing off, Alaskasland's claim would fail for lack of damages.  In  

                           



denying Alaskasland's motion for partial summary judgment and granting the Realtors'  

                                                                                           



cross-motion with respect to misappropriation, the superior court stated that Alaskasland  

                                                                      



"failed to show evidence of any damages."  We agree.  Unlike in Aagard , involving an  

                                                                                                               



allegation that many design plans had been deceitfully sold under a business competitor's  

name,37  the  only  relevant  sale  here  occurred  when  Alaskasland  itself  purchased  the  



Goode  property  for  $155,000  shortly  before  the  superior  court  granted  summary  

                                                                        



judgment in the Realtors' favor.  Alaskasland argues that the Realtors "passed off" the  



                                                                                             

Goode property as part of the Susitna Shores subdivision, but there is no evidence that  



                                                                                          

anyone was deceived - certainly Alaskasland knew that the property it was purchasing  

was not part of its subdivision38  - or that (1) the Realtors profited from the alleged  



passing off or (2) Alaskasland actually was harmed by the alleged passing off.  



                    When deposed Moore stated that during a Susitna Shores open house in  

                                                                       



October 2011, one attendee specifically expressed interest in the Goode property, which  



                                                                                                          

Alaskasland did not then know was for sale, but expressed no interest in Susitna Shores'  



lots.  Moore could name no one who wanted to purchase the Goode property because  



                                                                                              

they believed it was within the Susitna Shores subdivision, let alone anyone interested  



                                                            

in purchasing a Susitna Shores lot who instead purchased the Goode property.  Moore  



                                                                                                         

remembered an individual who made a nonrefundable down payment on a lot and then  



          36        (...continued)  



tort's injury  requirement.  Id. at 1216-17.  The passing off counterclaim survived a  

                    

motion to dismiss on the merits.  Id.  



          37        Id . at 1213-14.  

                          



          38        Cf. id. at 1217 ("[M]any home builders believed they were purchasing a  



Palomar Plan - possibly with Palomar's approval - when they entered into business  

                                                                                  

with Aagard.").  



                                                             -20-                                                        7057
  


----------------------- Page 21-----------------------

             

did not purchase it, but Moore did not attribute this lost sale to the Realtors' use of  



Alaskasland's Susitna Shores sign photo.  



                    Alaskasland contends that a genuine issue of material fact remains with  



                                                                                         

respect  to  the  damages  it  suffered  from  the  Realtors'  use  of  its  stylized  sign  photo  



because dozens of people viewed the Realtors' Goode property listing online, and the  



                                                                                39  

                                                                                    Alaskasland has demonstrated  

listing included that photo.  But that fact is not material. 



no injury from these online viewings and does not connect them to any diversion of  



profits from Alaskasland to the Realtors.  It cannot show that any individual who viewed  



                                                              

the Susitna Shores sign photo expressed interest in the Goode property or lost interest  



in purchasing Susitna Shores' property as a result of the Realtors' use of that photo.  



                                                                                                                             40  

                                                                                                                    

Because Alaskasland's damages are only hypothetical, its claim fails as a matter of law. 



                                                                                              

                    In the same vein Alaskasland argues that its two expert reports create a  



genuine  issue  of  material  fact  with  respect  to  damages  and  that  the  superior  court  



                                                                                                                    

neglected to consider this evidence.  Neglecting to mention the expert reports does not  



                                                                                       

necessarily mean that the court failed to consider them in its ruling - the court stated  



          39        See Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 519 (Alaska   



2014)  ("[A]  material  fact  is  one  upon  which  resolution  of  an  issue  turns."  (citation  

omitted)).  



          40        Cf. Orsini v. Bratten, 713 P.2d 791, 794 n.6 (Alaska 1986) ("Damages  



should not be awarded on the basis of speculation, surmise or conjecture.") (citation  

omitted);  State  v.  Hammer,  550  P.2d  820,  824-25  (Alaska  1976)  ("Loss  of  profits  

                                                                                                                 

damages have been awarded in a variety of civil contexts, including tort actions . . . and  

                                                                                                                          

suits for infringement of a patent or trademark.  In any case seeking loss of profits, such  

                                                                       

damages must be 'reasonably certain':  the trier of fact must be able to determine the  

amount of lost profits from evidence on the record and reasonable inferences therefrom,  

                                                                

not  from  mere  speculation  and  wishful  thinking.    Thus,  claims  which  are  truly  

speculative, in that they depend on unrealized contingencies . . . or the like, are screened  

out by the requirements of reasonable certainty, while damages which can be proven are  

                                        

allowed." (footnotes omitted)).  



                                                             -21-                                                       7057
  


----------------------- Page 22-----------------------

that it would consider both parties' expert reports before issuing a decision, and it may  



                                                   41  

simply have found them unhelpful.    One of Alaskasland's expert reports assumes that  



                                                                                                    

Alaskasland would have licensed its photos to the Realtors for a fee and then increases  



that fee ten-fold because the photo licensing company upon whose policy the expert  



                                          

relied similarly increases its fees when photos are "used illegally in some manner."  The  



                                                                                                      

expert  report  notes  that  the  Copyright  Act  provides  for  statutory  damages  if  the  

                                                              42  and calculates damages accordingly.  But  

                                                                  

" 'infringement was committed willfully' "  



to  the  extent  that  Alaskasland  claims  damages  for  the  unauthorized  use  of  its  

                      



photographs, this type of misappropriation claim, as discussed above, is preempted by  

                                                                                                       

the Copyright Act.43  



                   The expert reports also detail the money Alaskasland spent advertising  



Susitna Shores by preparing "[a]rt," attending "[t]rade show[s]" and "other promotions,"  

                       



constructing its stylized sign, and designing and maintaining its website.  Using this sum,  

                                           



$361,827, one expert reasons that Alaskasland spent "$15,870 per acre" in promoting  



                                                       

the lots it sold and then contends that, because the Realtors marketed the 4.6 acre Goode  



property and because they used Alaskasland's "advertising [and] not just the photos,"  



they damaged Alaskasland in the amount of "$73,000 (4.6 acres x $ 15,870 per acre  



          41        Cf. Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998) ("Assessment of  



witness  credibility  is  left  to  the  discretion  of  the  superior  court."  (citing  Hanlon  v.  

Hanlon , 871 P.2d 229, 232 (Alaska 1994))).  One expert report, for instance, stated that  

                                                                                                                

Alaskasland  suffered  $120,000  in  damages  because  it  was  "forced"  to  purchase  the  

Goode property for $155,000 even though "the real fair market value of [that] parcel was  

                                                                                                               

$35,000."  It is difficult to discern how Alaskasland was "forced" into overpaying for the  

                                                                                              

property but simple to discern that Alaskasland would pay a premium for the Goode  

property, surrounded as it was by the Susitna Shores subdivision.  



          42       See  17 U.S.C.  504(c)(2) (2012).  



          43       See supra notes 25-32 and accompanying text.  



                                                            -22-                                                      7057
  


----------------------- Page 23-----------------------

promotion costs)."  (Emphasis omitted.)  But these novel calculations fail to create a  



reasonable  inference  that  the  Realtors  profited  at  Alaskasland's  expense  or  that  



Alaskasland suffered an actual loss.  Finally, Alaskasland's other expert report states  



that, by using the sign photo and "keywords" similar to Alaskasland's, the Realtors'  



listing "dilut[ed] the online marketing efforts of Susitna Shores."  The report notes that  



                      

"searching for 'Susitna Shores' . . . would affect the search engine rankings negatively  



                                                     

for Susitna Shores and positively for the [Realtors'] online listings." (Emphasis added.)  



It may be that online dilution of search results for the term "Susitna Shores" is a distinct  



possibility,  but  no  evidence  in  the  record  creates  a  genuine  issue  of  fact  as  to  



Alaskasland's actual injury from possible online marketing dilution.  Even taken together  

                                                     44  its experts' reports fail to raise a genuine issue  

                                                                                                        

and construed in Alaskasland's favor, 



of material fact as to any actual damages it suffered from the Realtors' use of the Susitna  

                                                                                     



Shores sign photo.  



                                                                                                            

                   Alaskasland has not demonstrated that the Realtors "passed off" the Goode  



property to any deceived purchaser - rather, Alaskasland bought the property.  Even  



assuming  its  passing  off  claim's  validity  for  the  sake  of  argument,  Alaskasland  has  



produced  no  evidence  of  deception  or  damages.    Regardless  of  how  Alaskasland  



                                                                                             

characterizes its claim concerning the Realtors' use of the Susitna Shores sign photo, its  



claim necessarily fails.  



                                                                                                

                   1.	      A reasonable royalty measure of damages is inappropriate for  

                            a passing off claim.  



                                                                         

                   Alaskasland urges us to follow other courts that "employ a 'reasonable  



royalty'  measure  of  damages  in  cases  where  [d]efendants  did  not  profit  from  their  



         44        See Lockwood v. Geico Gen. Ins. Co.                  , 323 P.3d 691, 696 (Alaska 2014)  



(explaining that on review of summary judgment ruling record is read in light "most  

favorable to the non-moving party" with "all reasonable inferences drawn in its favor").  



                                                          -23-	                                                   7057
  


----------------------- Page 24-----------------------

                                                                                                               

misappropriation."  A reasonable royalty "is a measure of damages for past infringement,  



                                                                           

often used in patent cases and in the context of trade secrets, but its use in trademark has  

been atypical."45  "Trade secret law places a premium on the value of secrecy, and creates  



exclusive rights in the holder of the secret."46  



                                                                        

                      A reasonable royalty cannot serve as a measure of damages here because  



the photograph of Alaskasland's concrete sign is simply not a trade secret, visible as it  



is to anyone traveling the Parks Highway.  We decline to apply a measure of damages  



                                                                                                                 

derived from trade secret law to the claim for misappropriation of the sign photograph  



as an end-run around the latter's damage requirement.  



                                                                            

                       The cases Alaskasland invokes to support its argument are distinguishable.  



                                                                  

In Sheldon v. Metro-Goldwyn Pictures Corp. the United States Supreme Court approved  



                     

the  use  of  a  reasonable  royalty  as  a  measure  of  damages  only  after  copyright  



                                                                                     

infringement liability had been established:  The reasonable royalty calculation itself  



                                                                            47  

                                                                                 Alaskasland also points to ITT Corp. v.  

does not establish that an injury has occurred. 



           45         A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc.                                    , 166 F.3d 197, 208   



(3d Cir. 1999);           accord Vt. Microsystems, Inc. v. Autodesk, Inc., 138 F.3d 449, 450 (2d                                      

Cir. 1998).  See also RESTATEMENT (THIRD) OF UNFAIR COMPETITION   45 cmt. g (1995)  

("A reasonable royalty measure of relief awards to the plaintiff the price that would be  

                                                                                                                                   

set by a willing buyer and a willing seller for the use of the trade secret made by the  

defendant." (emphasis added)).  



           46         LinkCo, Inc. v. Fujitsu Ltd. , 230 F. Supp. 2d 492, 504 (S.D.N.Y. 2002).  



           47          309 U.S. 390, 396-400 (1940). The lawsuit involved a film that plagiarized  

                                                                            

material from a copyrighted play and considered whether and how to apportion profits  

                                                                                                   

between the film company and the play's copyright holder.  Id . at 396-98.  The Court  

                                                      

apportioned the profits, relying on its patent law precedent:  " 'The infringer is liable for  

                            

actual, not for possible, gains.  The profits, therefore, which he must account for, are not  

                                                                                                                                        

those which he might reasonably have made, but those which he did make, by the use of  

                                                                                   

the plaintiff's invention . . . .' " Id. at 400 (quoting Tilghman v. Proctor, 125 U.S. 136,  

                                                                

                                                                                                                           (continued...)  



                                                                     -24-                                                                7057
  


----------------------- Page 25-----------------------

                                

Xylem Group, LLC , a case which, like Sheldon, simply noted that if the plaintiff succeeds  



                                                                                                                    

in proving trademark infringement, then "a reasonable royalty is a viable measure of  

damages."48  



                     2.	       Alaskasland's common law trade name infringement claim is  

                                                                                                        

                               indistinguishable from its passing off claim  and also fails for  

                               lack of damages.  



                                                                                                       

                     At oral argument before us Alaskasland conceded that its misappropriation  



                         

or  passing  off  claim  was  "bigger  than"  and  therefore  included  its  trade  name  and  



                                                                                                     

trademark  infringement  claims.                       We  discern  no  meaningful  difference  between  



Alaskasland's passing off claim - alleging the Realtors marketed the Goode property  



as though it were within the Susitna Shores subdivision - and its common law trade  



          

name infringement claim, which also alleges that the Realtors used the sign photo to  



                                                                 

"creat[e]  the  impression  that  the  Goode Property  was  part  of  Susitna  Shores."    "At  



                                                                       

common law . . . tradename infringement was only one form of tort encompassed under  



                                                                            

the concept of unfair competition, a concept that also included passing off one's goods  



          47         (...continued)  



 146 (1888), superseded by statute on other grounds, Act of August 1, 1946, c. 726,  1,  

                                                                                                       

60 Stat. 778, as recognized in Gen. Motors Corp. v. Devex Corp., 461 U.S. 648, 651-52  

                                                                                                     

(1983)).  



          48  

                                                                     

                     963  F.  Supp.  2d  1309,  1331  (N.D.  Ga.  2013).    See  also  Michael  A.  

                                                                                                            

Rosenhouse,            Annotation,           Proper        Measure          and      Elements          of    Damages           for  

                                                        

Misappropriation of Trade Secret , 11 A.L.R. 4th 12, 20 (1982) ("In the absence of  

                                                                                                           

circumstances indicating what the parties thought the plaintiff's trade secret was worth,  

the courts, in measuring damages for a misappropriation,  seem to have been guided  

substantially by what the plaintiff has proved .  Thus, they have awarded the plaintiff his  

                                  

lost profits . . . or an accounting for the defendant's profits . . . upon proper and sufficient  

                                                                                               

evidence as to the amount thereof, both measures being deemed acceptable in general by  

                                                                           

most courts . . . ." (emphasis added)).  



                                                               -25-	                                                        7057
  


----------------------- Page 26-----------------------

                                               49  

as those of another . . . ."                       We also note that on the facts of this case, there is no  



meaningful difference between Alaskasland's trade name and trademark infringement  



                                                                                        

claims because "the law affords protection against [the misappropriation of either] upon  

the same fundamental principles."50  



                                                                                                                                  

                       As  with  a  passing  off  claim,  to  recover  damages  under  a  trade  name  



                                                                                                                       51  

                                                                                                                            Even assuming  

infringement claim "plaintiff must prove both causation and amount." 



                                             

the name Susitna Shores acquired secondary meaning, Alaskasland failed to show that  



                                                                                                                                          

it suffered any actual damages from the Realtors' use of its sign photograph in their  



listing.    We  therefore  conclude  that  the  superior  court  properly  granted  summary  

judgment to the Realtors on Alaskasland's common law trade name infringement claim. 52  



            49         20th Century Wear, Inc. v. Sanmark-Stardust Inc., 747 F.2d 81, 90 (2d Cir.   



 1984) (internal quotation marks omitted) (citing                                  Am. Steel Foundries v. Robertson , 269  

U.S. 372, 380 (1926)); see also Maguire v. Gorruso                                      , 800 A.2d 1085, 1088 n.1 (Vt. 2002)     

("Common law unfair competition includes a number of different tort theories, including                         

 'passing-off,' which is in effect the common law name for trademark infringement, trade- 

 secret violations, and misappropriation." (citing PROSSER  &  KEETON ,T                                                HE LAW OF TORTS  

  130, at 1015-20 (5th ed.1984))).  



            50         Alderman v. Iditarod Props., Inc.                        , 32 P.3d 373, 381 (Alaska 2001) (quoting       



Robertson , 269 U.S. at 380).  "The distinction between trade name and trademark . . . is  

generally not a critical distinction."  Id.  Alaskasland used these terms interchangeably  

                                                                       

throughout its arguments to the superior court and to us.  



            51         5  J.  THOMAS  MCCARTHY ,   MCCARTHY  ON   TRADEMARKS  AND  UNFAIR  

                           



                          

COMPETITION     30:72, at 30-200 (4th ed. 2015); see also  RESTATEMENT  (THIRD)  OF  

UNFAIR COMPETITION   20 cmt. b (1995) (noting that modern cases treat trademark and   

trade name claims similarly and that "the standard of infringement is the same");                                                        id.  36  

("One who is liable to another . . . for infringement of the other's . . . trade name . . . is  

liable for the pecuniary loss to the other caused by the . . . infringement . . . ." (emphasis  

                                                                                              

added)).  



            52  

                                                                                                                      

                       We also note that the standard remedy for trademark infringement is an  

                                                                                                                               (continued...)  



                                                                        -26-                                                                 7057
  


----------------------- Page 27-----------------------

          C.	      Alaskasland's Defamation Claim Fails Because The Two Statements  

                   In The Appraisal Are Non-Defamatory Opinions.  



                   A  defamation  claim  requires  proof  of  four  elements:    "(1)  a  false  and  



                                                                                                  

defamatory statement; (2) unprivileged publication to a third party; (3) fault amounting  

at  least  to  negligence;  and  (4)  either  per  se  actionability  or  special  damages."53                            In  



                                                

granting summary judgment to the Realtors the superior court suggested there was a  



                                

genuine issue of fact whether the appraisal contained false and defamatory statements,  



                                                       

but ruled that the statements were not published and that the Realtors were not negligent  



                                                                                                   

in posting the appraisal.  We affirm on the alternative ground that the statements are non- 

defamatory opinions.54  



                                           

                   The  tort's  first  element  -  whether  a  statement  is  defamatory  -  is  a  



                         55  

                                                                   

question  of  law.             "The  First  Amendment  bars  actions  for  defamation  where  the  



allegedly defamatory statements are expressions of ideas and 'cannot reasonably be  



          52       (...continued)  



injunction.    5  MCCARTHY ,  supra  note  52,  at    30:1.    The  superior  court  correctly  

concluded that Alaskasland's injunction claim was moot.  When there is no proof of  

passing off, and when the infringement neither damaged the plaintiff nor profited the  

infringer, damages will not be awarded because "an injunction will satisfy the equities  

                                         

of the case." Champion Spark Plug Co. v. Sanders, 331 U.S. 125, 130-32 (1947); see  

also  RESTATEMENT  (THIRD)  OF  UNFAIR  COMPETITION  35 &  cmt. a (1995) (stating  

                                                                                              

"judicial  preference  for  injunctive  relief  in  unfair  competition  cases"  involving  

"deceptive marketing, trademark infringement, and trademark dilution");  id.   36 &  

cmt.  i  (stating  that  "the  recovery  of  damages  ordinarily  requires  proof  that  some  

consumers have actually been confused or deceived").  



          53  

                                                                   

                   State v. Carpenter, 171 P.3d 41, 51 (Alaska 2007) (citing French v. Jadon,  

Inc. , 911 P.2d 20, 32 (Alaska 1996)).  



          54       See supra note 8 and accompanying text.  



          55  

                                                             

                   DeNardo v. Bax , 147 P.3d 672, 677 (Alaska 2006) (citing Schneider v.  

Pay'N Save Corp. , 723 P.2d 619, 624-25 (Alaska 1986)).  



                                                            -27-	                                                     7057
  


----------------------- Page 28-----------------------

                                                                                         56  

interpreted  as  stating  actual  facts  about  an  individual.'  "                            "To  ascertain  whether  a  



                                                                     

statement is factual," we will "consider 'the type of language used, the meaning of the  



statement  in  context,  whether  the  statement  is  verifiable,  and  the  broader  social  



                                                                             57  

                                                                                                                    

circumstances in which the statement was made.' "                                 Even if a statement is an opinion,  



it may give rise to a defamation claim if its "expression contains an implied assertion of  

false fact and is sufficiently derogatory as to cause harm to the subject's reputation."58  



                                                                                               

But " 'if it is plain that the speaker is expressing a subjective view, an interpretation, a  



             

theory, conjecture, or surmise, rather than claiming to be in possession of objectively  



                                                                            59  

                                                                                                    

verifiable facts, the statement is not actionable.' "                           The tension in this area of the law  



concerns  the  appropriate  balance  between  the  First  Amendment's  protections  and  



          56        Sands v. Living Word Fellowship, 34 P.3d 955, 960 (Alaska 2001) (quoting     



Milkovich v. Lorain Journal Co. , 497 U.S. 1, 20 (1990)).  



          57        Id. (quoting Milkovich , 497 U.S. at 24 (Brennan, J., dissenting)); see also  



Kinzel v. Discovery Drilling, Inc. , 93 P.3d 427, 440 (Alaska 2004) (emphasizing that  

whether statement is fact or opinion depends upon totality of circumstances, including  

                                                                      

" 'all the words used,' " any " 'cautionary terms,' " and statement's audience (quoting  

                                                                                                         

Lyons v. Globe Newspaper Co. , 612 N.E.2d 1158, 1162 (Mass. 1993))).  



          58         Carpenter, 171 P.3d at 51 (citing RESTATEMENT (SECOND) OF TORTS  566  



cmt. a (1977)).  

           



          59        Kinzel ,   93 P.3d at 440 (quoting Haynes v. Alfred A. Knopf, Inc. , 8 F.3d  



 1222, 1227 (7th Cir. 1993)).  



                                                               -28-                                                         7057
  


----------------------- Page 29-----------------------

society's " 'strong interest in preventing and redressing attacks upon reputation.' "60  



" 'Whatever is added to the field of libel is taken from the field of free debate.' "61  



                  Alaskasland argues that there are two false and defamatory statements in  



Brooker's 21-page Goode property appraisal, which was available on the realtor-only  



FlexMLS website.  The first statement concerns Susitna Shores' electric service:  



                   Matanuska         Electric     Association        [(MEA)]         Engineering  

                                                                                

                   Department staff was unable to provide the exact location of  

                                                                                       

                   closest electric service or estimate the expense of bringing  

                   electric service to the subject site.  No map regarding electric  

                   service in place for Susitna Shores is available according to  

                                                                     

                   the   engineer   interviewed.              The   electric   service   in   the  

                   surrounding subdivision may be subject to legal issues due to  

                   lack    of     MEA       participation        in    construction        of    the  

                   infrastructure.  The exact nature of the difficulty, if any, was  

                   not disclosed by the staff member interviewed.  It is assumed  

                                                                                    

                  that the availability and expense of providing electric service  

                                                                                  

                   for the subject is equivalent to that of other land advertised to  

                                                                                     

                  have electric "in area."  



(Emphases added.)  Alaskasland argues that the electricity statement about possible legal  



issues is defamatory because MEA actually had accepted Susitna Shores' electric service,  



implying that it could not therefore be subject to "legal issues."  



                   The second statement concerns Susitna Shores' gated security:  



                   [T]he [Goode property] is the single remaining uncaptured lot  

                  within  the  subdivided  area;  the  subject  has  an  undeniable  

                                                                                  

                   access right that crosses the access to [the] subdivision boat  

                                           



         60       Milkovich , 497 U.S. at 22 (quoting Rosenblatt v. Baer , 383 U.S. 75, 86  



(1966)); see also Ollman v. Evans, 750 F.2d 970, 974 (D.C. Cir. 1984) (noting that  

                                                                                

striking  proper  balance  between  First  Amendment  and  "an  individual's  interest  in  

reputation" is "delicate and sensitive task").  



         61       Milkovich , 497 U.S. at 36 (Brennan, J., dissenting) (quoting N.Y. Times Co.  



v. Sullivan, 376 U.S. 254, 272 (1964)).  



                                                         -29-                                                    7057
  


----------------------- Page 30-----------------------

                    ramp - and that access could be developed and probably left  

                    open, thereby defeating the gated subdivision.  



(Emphases  added.)    Alaskasland  argues  the  gated  security  statement  is  defamatory  



because "no matter how the Goode Property was developed, Susitna Shores could always  



maintain the security of its gated community and road."  



                    1.	      Applying the Sands v. Living Word Fellowship  factors leads to  

                             the conclusion that both statements are opinions.  



                    To determine whether the statement is an opinion we apply the four Sands  



factors:  " 'the type of language used, the meaning of the statement in context, whether  

                                                                                                    



the statement is verifiable, and the broader social circumstances in which the statement  

                                        

was made.' "62  



                                                                                                            63  

                    The first Sands factor considers "the type of language used."                                Brooker's  



carefully chosen language conveys his appraisal's limitations.  The paragraph containing  

                                                         



the  electricity  statement  references  MEA's  employees  three  times  and  conveys  that  

                                                                   



Brooker interviewed MEA "staff."  But Brooker spoke to only a few people: "No map  

                                          



regarding electric service . . . is available according to the engineer interviewed"; and  



"[t]he  exact  nature  of  the  difficulty,  if  any,  was  not  disclosed  by  the  staff  member  



interviewed."  



                                                                                                      

                    The allegedly defamatory electricity statement - "The electric service in  



                                                          

the  surrounding  subdivision  may  be  subject  to  legal  issues  due  to  lack  of  MEA  



                                                                              

participation in construction of the infrastructure" - likely contains the phrase "may be"  

                                                                                                   64  After reading the  

to connote Brooker's uncertainty about the existence of legal issues. 



          62        34 P.3d at 960 (quoting Milkovich , 497 U.S. at 24 (Brennan, J., dissenting)).  



          63       Id . (internal quotation marks omitted).  



          64        See Kinzel, 93 P.3d at 440 (" '[T]he court must give weight to cautionary     



                                                                                                           (continued...)  



                                                             -30-	                                                      7057
  


----------------------- Page 31-----------------------

paragraph one could conclude that the engineer Brooker interviewed could not provide  



a map of the electric service in Susitna Shores and that "the staff member" Brooker  



interviewed  did  not  disclose  whether  Susitna  Shores'  electric  service  had  any  legal  



issues.  



                                                                                            

                      The gated security statement contains the cautionary and speculative terms  



"could be" and "probably."  Brooker's use of hedging language would suggest to a  



reasonable  reader  that  a  compromise  of  the  gated  subdivision's  integrity  is  only  a  



possibility, not a certainty.  Both statements contain declarative yet cautionary language.  

                      The second Sands factor considers the statement's meaning in context.65  



The alleged defamatory statements appear in an appraisal, by statutory definition an  



              66  

                                          

opinion.           After noting that Susitna Shores "may" have "legal issues" - "if any" -  



                              

with  its  electric  service,  Brooker  then  noted  the  minimal  impact  of  this  possible  



                                                                                                     

impediment on the Goode property:  "It is assumed that the availability and expense of  



                                                                         

providing electric service for the subject is equivalent to that of other land advertised to  



                                                                                   

have electric 'in area.' "  Brooker commented on the subdivision's electric service later  



                              

in the appraisal, writing:  "Susitna Shores subdivision has underground electric and  



                                                                                  

telephone utilities [and] gravel surfaced streets . . . ."  After mentioning the possible  



                                                                                 

existence of "legal issues" with Susitna Shores' electric service once, Brooker does not  



           64          (...continued)  



terms  used  by  the  person  publishing  the  statement.'  "  (quoting  Lyons  v.  Globe  

Newspaper Co. , 612 N.E.2d 1158, 1162 (Mass. 1993))).  



           65          34 P.3d at 960;           see also RESTATEMENT (SECOND) OF  TORTS   614 cmt. d  



(1977) ("[T]he context of written or spoken words is an important factor in determining   

the meaning that they reasonably might convey to the person who heard or read them.").     



           66         See AS 08.87.900(2).  



                                                                     -31-                                                               7057
  


----------------------- Page 32-----------------------

raise  this  issue  again,  suggesting  that  the  possibility  of  legal  issues  was  remote.67  



                                                                                                

Moreover, the appraisal's purpose was to establish the value of the Goode property, and  



                                                                                                       

it was meant to be read by prospective purchasers of that property, not by prospective  



purchasers of Susitna Shores' lots.  



                    The  contextual  meaning  of  the  gated  security  statement  becomes  more  



apparent after viewing maps of the area, some of which were attached to Brooker's  



                                                                                                                           

appraisal.  Brooker stated that he relied on maps and photographs in  arriving  at his  



opinion  of  the  property's  value,  noting  that  the  Goode  property's  access  easement  



                                                                 

crossed Susitna Shores' boat launch road. Similarly one map in the record, although not  



attached to the Brooker appraisal, shows that Susitna Shores' boat launch easement  



                                                                                                            

intersects the Goode property's access easement.  In the context of the entire appraisal,  



                                  

including  the  maps,  the  statement  that  the  gated  subdivision's  integrity  might  be  



compromised does not seem implausible.  



                                                                                                                   68 

                                                                                                                       Brooker  

                    The third Sands factor is " 'whether the statement is verifiable.' " 



wrote that Susitna Shores' electric service "may be subject to legal issues due to lack of  



MEA  participation  in  construction  of  the  infrastructure.    The  exact  nature  of  the  



                                                                                                         69  

                                                                                                             The possibility  

difficulty, if any, was not disclosed by the staff member interviewed." 



          67        See Partington v. Bugliosi             , 56 F.3d 1147, 1153 (9th Cir. 1995) (explaining   



that in analyzing a defamation claim "the general tenor of the entire work" should be  

taken into account).  



          68        34 P.3d at 960 (quoting Milkovich v. Lorain Journal Co. , 497 U.S. 1, 24  



(1990) (Brennan, J., dissenting)).  



          69        Although Alaskasland argues that Brooker's statement is false because  



MEA  accepted  the  electric  service  installed  at  Susitna  Shores,  the  MEA  employees  

Brooker interviewed did not disclose this information.  A statement's defamatory nature  

                                                                                   

depends on "whether reasonable readers would have actually interpreted the statement  

                                                               

                                                                                                               (continued...)  



                                                              -32-                                                         7057
  


----------------------- Page 33-----------------------

                                          

that something will occur in the future cannot be verified:  it is always technically true  



                                                                                    

to state that an occurrence is possible.  A statement is not a fact if it cannot plausibly be  



             70 

verified.        We have previously noted that a statement's unverifiability favors concluding  

that the statement is an opinion and not a fact.71  



                              

                     Like  the  electricity  statement,  the  gated  security  statement  cannot  be  



                                                                                               

verified because it speculates that a future event is possible.  Relying on the affidavit of  



                                                                                                                

its general manager, Asbury Moore, Alaskasland argues that "no matter how the Goode  



                                                                

Property was developed, Susitna Shores could always maintain the security of its gated  



                                     

community and road."  When deposed Moore stated:  "[The Goodes] have access north  



                                                       

and south.  They don't have access east and west.  So we could put up a fence and a gate  



          69         (...continued)  



as implying defamatory facts," not on whether the statement, stripped of its context, is  

                                                                                                              

verifiable in the abstract.  See Milkovich, 497 U.S. at 27 n.3 (Brennan, J., dissenting).  

                     

Moreover, Brooker's assertion that the subdivision's electric service "may be subject to  

                                                             

legal issues" is unverifiable.  



          70  

                                                                                                         

                     See Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302 (8th Cir. 1986) ("A  

                                                                                                                         

statement regarding a potentially provable proposition can be phrased so that it is hard  

to establish, or it may intrinsically be unsuited to any sort of quantification."); Ollman  

v. Evans , 750 F.2d 970, 979 (D.C. Cir. 1984) ("Insofar as a statement lacks a plausible  

                                             

method of verification, a reasonable reader will not believe that the statement has specific  

                                                                   

factual content.").  



          71  

                                                                         

                     See State v. Carpenter, 171 P.3d 41, 48, 51-52 (Alaska 2007) (reasoning  

                                                                                      

that sexual insults made during a radio show known for its lewdness "were not factually  

verifiable" and therefore, although "offensive to any rational person," the statements  

                                                                                        

"were not defamatory"); Sands, 34 P.3d at 960 (holding statements that a church was a  

"cult" and its pastor a "cult recruiter" were "not factual statements capable of being  

proven true or false," and therefore could not support a defamation action); see also  

                                           

Ollman, 750 F.2d at 981 ("In assessing whether the challenged statements are facts,  

                                                                                     

rather than opinion, courts should . . . consider the degree to which the statements are  

                   

verifiable . . . .  The reason for this inquiry is simple: a reader cannot rationally view an  

                                                                                   

unverifiable statement as conveying actual facts." (citation omitted)).  



                                                                -33-                                                          7057
  


----------------------- Page 34-----------------------

[parallel to, but not intersecting, the Goode's access easement]."  (Emphasis added.)     

That Moore stated he "could put up a fence" connotes that one did not currently exist.                                            72  



As Moore's deposition testimony illustrates, the statement that Susitna Shores' gated  



security could be defeated postulates a future event and is therefore unverifiable, which  



favors  concluding  that  the  statement  is  an  opinion  and  not  a  fact.    We  note  that  



                                                                                            

Alaskasland marketed three Susitna Shores lots as providing "gated or non-gated entry,"  



which contradicts the proposition that the whole subdivision was entirely fenced.  



                    The fourth Sands factor examines " 'the broader social circumstances in  



                                                    73  

                                                        Brooker wrote a professional appraisal to value a  

which the statement was made.' "                                                                       



                               74  

parcel of real estate.              Appraisers serve an important social function by reducing the  



                                                                                                     75  

                                                                                                         Accordingly they  

value of real estate to a firm number to promote its free alienation. 



                                               

should be free to express their complete and candid opinions in the interest of providing  



                                                                                 

the real-estate-buying public with the most practical and detailed information possible.  



          72        See AMERICAN  HERITAGE DICTIONARY 426 (3d ed. 1992) (defining "could"  



as  an  auxiliary  verb  "[u]sed  to  indicate  ability  [or]  possibility  .  .  .  .  [u]sed  with  

hypothetical or conditional force . . . . [or] [u]sed to indicate tentativeness or politeness").  



          73        34 P.3d at 960 (quoting Milkovich , 497 U.S. at 24 (Brennan, J., dissenting)).  



          74        See  AS  08.87.900(2)  (defining  "appraisal"  as  "an  analysis,  opinion,  or  



conclusion prepared by a real estate appraiser relating to the nature, quality, value, . . . or  

                                                                                                                   

utility of specified interests in, or aspects of, identified real estate"); see also Ketchikan  

                                                                

Cold Storage Co. v. State, 491 P.2d 143, 151 (Alaska 1971) ("The appraisal of property  

                                                                                  

is not an exact science.  It requires a complex balancing of the various principles and  

techniques which are utilized in reaching the final estimate of value.").  



          75  

                                                                                                    

                    See, e.g., BP Pipelines (Alaska) Inc. v. State, Dep't of Revenue , 325 P.3d  

                                                                                                        

478, 483 (Alaska 2014) (stating Appraisal Institute "defines market value as [t]he most  

probable price, as of a specified date . . . for which the specified property rights should  

                                                   

sell after reasonable exposure in a competitive market under all conditions requisite to  

a fair sale" (quoting APPRAISAL  INST .,   THE  APPRAISAL OF  REAL  ESTATE 23 (13th ed.  

2008)) (internal quotation marks omitted)).  



                                                               -34-                                                         7057
  


----------------------- Page 35-----------------------

                                                                                         

And real estate agents such as the Realtors here, who routinely rely on appraisals, should  



                                      

not  be  burdened  with  a  duty  to  independently  verify  every  speculative  or  factual  



                                              

assertion within an appraisal, a time-consuming and cumbersome endeavor.  Safeguards  

                                                                                                    76 and we decline  

exist for reprimanding negligent or incompetent real estate appraisers, 



here to invent a sweeping rule making real estate agents vicariously liable for the alleged  

                                      



misdeeds of appraisers upon whose appraisals these agents rely for their livelihoods.  The  

                                                                                    



broader social circumstances surrounding real estate appraisals weigh in favor of free  



speech, within reason, and against the imposition of liability.  



                   Weighing these four factors - Brooker's use of cautionary language, the  



                                                     

single  reference  to  legal  issues  in  his  lengthy  appraisal,  the  maps  attached  to  the  



                                                                                            

appraisal, the statements' unverifiability, and the broader social circumstances in which  

                                                                                                            77  But as an  

the statements were made - we conclude that both statements are opinions. 



opinion, a statement may still be defamatory if it "contains an implied assertion of false  

                                                                       

fact."78  



                   2.	       Neither statement implies the knowledge of undisclosed facts as  

                             its basis.  



                   Drawing   all   reasonable   inferences   in   Alaskasland's   favor,   Brooker  



disclosed the following facts.  With respect to the electricity statement, Brooker disclosed  



that he spoke to one MEA employee who could not produce a map of Susitna Shores'  



          76	      See AS 08.87.200-.210.  



          77       See RODNEY A. SMOLLA , LAW OF DEFAMATION   6:1 (2d ed. 2015) (noting  



that  the  purpose  of  defamation  law's  distinction  between  fact  and  opinion  is  to  

                                                                            

achieve "an accommodation between protection of valuable interests in reputation and  

                                                                                                     

the  provision  of  sufficient  breathing  space  for  critical  and  sometimes  caustic  free  

expression").  



          78       State v. Carpenter, 171 P.3d 41, 51 (Alaska 2007) (citing RESTATEMENT  



(SECOND) OF TORTS   566 cmt. a (1977)).  



                                                           -35-	                                                     7057
  


----------------------- Page 36-----------------------

electric service and that he spoke to another MEA employee who said MEA did not  



participate in the infrastructure but did not disclose whether Susitna Shores' electric  



service was subject to legal "difficulty."  From these two facts, Brooker hypothesized  



that Susitna Shores' electric service "may be subject to legal issues due to the lack of  



MEA participation in construction of the infrastructure."  A reasonable reader would  



                                   

understand that a few people in an organization likely do not have the same institutional  



                              

knowledge as the organization itself.  And a reader of this appraisal would be free to  



                                                                                   

draw a different conclusion, especially in light of the hedging language - "may be" and  



"if any" - that Brooker used.  As Justice Brennan aptly explained in his Milkovich v.  



Lorain Journal Co. dissent:  



                     Conjecture, when recognizable as such, alerts the audience  

                     that the statement is one of belief, not fact.  The audience  

                     understands  that  the  speaker  is  merely  putting  forward  a  

                                           

                     hypothesis.           Although  the  hypothesis  involves  a  factual  

                     question, it is understood as the author's "best guess."  Of  

                     course, if the speculative conclusion is preceded by stated  

                     factual  premises,  and  one  or  more  of  them  is  false  and  

                     defamatory, an action for libel may lie as to them .  But the  

                     speculative conclusion itself is actionable only if it implies  

                                                                                                    [79] 

                     the existence of another false and defamatory fact.  



                     Brooker qualified his 21-page appraisal with a one-page "certificate of  



appraisal" certifying:  



           79        497 U.S. 1, 28 n.5 (1990) (Brennan, J., dissenting) (emphasis in original);       



see also Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir. 1995) ("[W]hen an         

author  outlines  the  facts  available  to  him,  thus  making  it  clear  that  the  challenged  

statements represent his own interpretation of those facts and leaving the reader free to  

                                                                                                                               

draw  his  own  conclusions,  those  statements  are  generally  protected  by  the  First  

Amendment."); Lauderback v. Am. Broadcasting Co. , 741 F.2d 193, 195 (8th Cir. 1984)  

                                                                                                            

("[G]iven all the facts of a situation, the public can independently evaluate the merits of  

                                                                          

even the most outrageous opinion and discredit those that are unfounded.").  



                                                                 -36-                                                           7057
  


----------------------- Page 37-----------------------

                                                                                                                   

                        1. The statements of fact contained in this report are true and  

                        correct.  

                        2.  The  reported  analyses,  opinions,  and  conclusions  are  

                        limited  only  by  the  reported  assumptions  and  limiting  

                        conditions,  and  are  my  personal,  unbiased  professional  

                        analyses, opinions, and conclusions.  



 Because Brooker revealed the underlying  facts on which his opinion relied, leaving  

                                                                             



readers of his appraisal free to form different opinions, we hold as a matter of law that  

                                                                                                                       



the electricity statement is not defamatory.  



                        With respect to the gated security statement, Brooker wrote:  "Access along                 



the [Goode property's] dedicated access easement . . . has not yet been developed[;]   



however there is no legal impediment to developing this access[,] and it would cross the     



 Susitna Shores boat ramp en route to the subject."  This statement is a straightforward  



                                                                                                                          

 interpretation of the maps Brooker included in his appraisal.  In more speculative terms  



 Brooker wrote:  



                        It is unknown exactly where the private road between the  

                                                                         

                        platted  subdivision  (north  of  the  [Goode  property])  and  

                                                                               

                        existing  private  boat  launch  site  (south  of  the  [Goode  

                                                                                         

                        property]) runs relative to the [Goode property's] twenty-five  

                                 

                        foot access easement. . . .  Subject site is assumed to have  

                        unimpaired             access        via      the     twenty-five             foot      easement  

                        discussed, although the access has not yet been developed.  



As evidenced by his use of the terms "unknown" and "assumed," Brooker disclosed that  

                                                



he was uncertain where the Goode property's undeveloped easement ran in relation to  

                                



 Susitna  Shores'  road  and  boat  launch.    This  uncertainty  likely  informed  Brooker's  

                                                



 speculative opinion that the Goode property's access easement "could be developed and  

                                                                                             



probably left open, thereby defeating the gated subdivision."  (Emphases added.)  These  

                                                                                   



 cautionary terms serve as "clear signals" to the reasonable reader that Brooker's opinion  

                                                                                                      



was "nothing more than conjecture and speculation" based on his stated assumptions,  

                                             



                                                                         -37-                                                                  7057
  


----------------------- Page 38-----------------------

factual  observations,  and  the  informative  maps  and  photographs  he  included  in  his  

appraisal.80  



                           The appraisal also contains an excerpt from a 2007 public zoning hearing                    



on road access to Susitna Shores:   "[T]he proposed frontage road within Susitna Shores  



will not be private or gated, providing unimpeded access to Big Su River Road and the                                                              



public campground. AKDOT/PF may require the frontage road to be extended along the                 



Parks Highway when and if the south adjacent parcel [Goode property] is developed."  



                           In sum, Brooker disclosed that:  (1) he did not know the exact locations of  



                                                                                                                                                    

the Goode property's access easement and the subdivision's existing road in relation to  



each other; (2) the Goode property's access easement was not developed; (3) if it were  



                                                     

developed, it would cross Susitna Shores' boat ramp road; and (4) the minutes from a  



                                        

2007 public zoning hearing referenced a "proposed frontage road within Susitna Shores"  



                                                                                                

that would "not be private or gated."  In reaching his opinion, Brooker clearly stated each  



                                                                                                                                                    

underlying factual premise and even included hearing minutes and maps in his appraisal.  



                                                                                             

None of these factual premises is defamatory, and Brooker's ultimate opinion does not  



suggest as its basis other undisclosed, underlying, and defamatory facts.  We therefore  



                    

conclude as a matter of law that this statement, like the electricity statement, is a non- 



defamatory  opinion,  a  mere  speculation  drawn  from  the  stated  assumptions  and  



uncertainties.  



             D.	           The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Awarding  

                           Enhanced Attorney's Fees.  



                                                                                                             

                           "We have 'consistently held that both the determination of prevailing party  



                                                                                                                                                         

status and the award of costs and fees are committed to the broad discretion of the trial  



             80            See Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997).  



                                                                                  -38-                                                                                   7057  


----------------------- Page 39-----------------------

court.'  'Therefore, any party seeking to overturn a trial court's decision in this regard  

[bears] a heavy burden of persuasion.' "81  



                                               

                   The superior court increased the Realtors' fee award to 35% of their actual  



fees or approximately $55,500.  As the court explained:  



                   Because  [Alaskasland's]  claims  lacked  merit  and  because  

                    [Alaskasland] unnecessarily increased the cost of litigation  

                                 

                   through  the  extent  of  the  asserted  claims  and  the  motion  

                   practice that necessarily resulted from these numerous claims,  

                   this court varies attorney's fees per Civil Rule 82(b)(3)(A),  

                   (E), (G), and (K) upwards to 35% of the reasonable actual  

                                                                                           [82] 

                   attorney's fees incurred by the realtor defendants.  



                                                                                                     

The court also based the increased fee award on its observation that Alaskasland had  



brought "a complex lawsuit despite having sustained no damages."  



                                                        

                   Alaskasland raises three arguments against the fee award.  It first argues  



                                                                                   

that although the Realtors prevailed on each of the claims below, it was also a prevailing  



                                                                                                                 

party because it succeeded in "compelling the removal of the Brooker appraisal from the  



internet."    Alaskasland  then  asks  us  to  exercise  our  discretion  "and  refrain  from  



                                                    

characterizing either [party] as the prevailing party, and from awarding [the Realtors]  



fees in this matter."  Alaskasland conflates the standard of review for attorney's fees with  



                                                                 

the  substantive  law.    This  court  reviews  awards  of  attorney's  fees  for  abuse  of  



          81       Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1241 (Alaska 2013)  



(quoting K & K Recycling, Inc., v. Alaska Gold Co. , 80 P.3d 702, 721 (Alaska 2003); W.  

                                                  

Airlines, Inc. v. Lathrop Co. , 535 P.2d 1209, 1217 (Alaska 1975)).  



          82       These provisions of Rule 82 permit a trial court to increase a fee award  



based on "the complexity of the litigation," "the attorneys' efforts to minimize fees,"  

"vexatious or bad faith conduct," and "other equitable factors deemed relevant." Alaska  

                     

R. Civ. P. 82(b)(3)(A), (E), (G), (K).  



                                                           -39-                                                      7057
  


----------------------- Page 40-----------------------

discretion,83 and we " 'will not find an abuse of discretion absent a showing that the  



award was arbitrary, capricious, manifestly unreasonable, or stemmed from improper  



               84  

motive.' "         We similarly review the superior court's prevailing party determination for  

abuse of discretion.85  



                   "The  prevailing  party  is  the  one  who  has  successfully  prosecuted  or  



                                                                                                                 

defended against the action, the one who is successful on the main issue of the action and  



                                                                                                                            86  

                                              

in  whose  favor  the  decision  or  verdict  is  rendered  and  the  judgment  entered." 



Alaskasland sought to enjoin the Realtors from making the Brooker appraisal available  

                                                                      



online and brought six other claims each requesting damages in "an amount exceeding  



                                                               

$100,000."  In July 2013 the court deemed the injunction claim moot because "[t]he last  



time the Brooker appraisal was available for download to the public was December  



2011," and the Realtors had since removed the appraisal from the realtor-only website.  



                                                                                                      

                   But Alaskasland did not characterize the main issue of its lawsuit as the  



                                                                                                       

removal of the Brooker appraisal from the MLS website - it sought money damages.  



                                                                                                             

During  oral  arguments  on  the  cross  motions  for  summary  judgment,  counsel  for  



Alaskasland suggested that expert reports would prove it suffered damages, arguing that  



                                                                                 

when the Realtors used three of its photographs, they were actually misappropriating  



Alaskasland's  entire  Susitna  Shores  marketing  effort.    One  expert's  report  asserted  



          83       See, e.g., Baker v. Ryan Air, Inc., 345 P.3d 101, 106 (Alaska 2015);                                M-B  



Contracting Co. v. Davis, 399 P.2d 433, 437 (Alaska 1965).  



          84       Bush       v.   Elkins ,     342      P.3d     1245,       1251      (Alaska       2015)       (quoting  



ConocoPhillips  Alaska,  Inc.  v.  Williams  Alaska  Petroleum,  Inc.,  322  P.3d  114,  137  

(Alaska 2014)); see also Tobeluk v. Lind , 589 P.2d 873, 878 (Alaska 1979).  



          85  

                                                                                               

                   See, e.g., Taylor v. Moutrie-Pelham, 246 P.3d 927, 928-29 (Alaska 2011).  



          86       Id. at 929 (quoting Progressive Corp. v. Peter ex rel. Peter , 195 P.3d 1083,  



1092 (Alaska 2008)) (internal quotation marks omitted).  



                                                            -40-                                                       7057
  


----------------------- Page 41-----------------------

Alaskasland  had  suffered  over  $350,000  in  damages  and  itemized  such  things  as  

                                                                                                  



"Inflated   Land   Purchase   Costs,"   "Photograph   Usage   Cost,"   and   "Advertising  



(Promotion) Usage Cost."  Another expert's report arrived at a similar damages figure  

                                                                         



by calculating dollar amounts for Alaskasland's "Advertising costs," "Art preparation  



time," "Trade show and all other promotions," "Entrance sign," and website design and  

                                 



maintenance.  But Alaskasland did not prevail on its claims.  We cannot say the superior       



court abused its discretion when it determined the Realtors were the prevailing party.  



                                                                                                               

                     Alaskasland  next  argues  that  the  Realtors  incurred  unreasonable  or  



unnecessary  fees  because  the  case  did  not  go  to  trial;  it  was  "not  overwhelmingly  



                                                                                                            

complex"; and the Realtors employed four attorneys who made no efforts to minimize  



fees.    But,  as  the  superior  court  reasoned,  the  Realtors  were  merely  reacting  to  the  



                                                                                          

complexity of the novel legal theories Alaskasland pled. Alaskasland brought a common  



                                                    

law misappropriation claim that has never been recognized in Alaska.  Alaskasland also  



                                                                                                                        

brought a conspiracy to defraud claim seeking $100,000 on the theory that the Brooker  



appraisal   had   been   fraudulently   altered   to   disparage   Susitna   Shores   and   force  



                                                          

Alaskasland  to  "acquiesce[]  to  a  greatly  inflated  purchase  price  for  the  [Goode  



property]."  The Goodes listed their property for $146,000, and Alaskasland made an  



unsuccessful offer of $95,000.  Alaskasland then had the Goode property independently  



                                                                                              

appraised at $35,000 and, on the strength of that appraisal, made a $50,000 offer, which  



was  also  rejected.    Despite  its  conspiracy  to  defraud  claim,  Alaskasland  bought  the  



property for $155,000 shortly before the superior court granted summary judgment to  



the Realtors.  



                     The superior court, and not this court, is optimally positioned to resolve  



                                                                              

whether  the  fees  charged  were  unnecessary  or  unreasonable  and  whether  too  many  



                                                                  -41-                                                            7057
  


----------------------- Page 42-----------------------

                                      87  

                                                            

attorneys were employed.                  Because of their "greater familiarity with the details of the  



                                                                                  88  

case" superior courts have broad discretion in this area.                             Alaskasland's  argument on  



                                                                                            

the excessiveness of the Realtors' fees fails to persuade us that the superior court abused  



its discretion when it concluded that the Realtors' fees were not excessive.  



                                                                                                       

                    Finally,  Alaskasland  argues  there  are  no  grounds  for  an  enhanced  fee  



award.  "We have held that '[i]n general, a trial court has broad discretion to award  



Rule 82 attorney's fees in amounts exceeding those prescribed by the schedule of the  



                                                                                                                   

rule,  so  long  as  the  court  specifies  in  the  record  its  reasons  for  departing  from  the  



                 89 

                                                                                                               

schedule.' "          Citing Rule 82(b)(3)(A), (E), (G), and (K), the superior court awarded the  



Realtors "35% of [their] reasonably incurred actual attorney's fees" because Alaskasland  



failed to prove any damages to support its numerous claims and because those claims  



                                                                                                       

"lacked merit" and resulted in "unnecessarily complex" litigation. The complexity of the  



                                                                                                                     90  

                                                                                                                         The  

litigation alone could have supported the superior court's enhanced fee award. 



                                                                                                

court further reasoned that had it not enhanced the Realtors' fee award, future litigants  



would be encouraged to bring unnecessarily complex claims in hopes of "extort[ing]  



                                                                    

settlements" against the backdrop of extensive and costly motion practice.  The argument  



Alaskasland  offers  us,  which  cites  no  legal  authority,  does  not  persuade  us  that  the  



          87        Valdez Fisheries D          ev.  Ass'n v. Froines ,  217 P.3d 830, 833 (Alaska 2009).  



          88       Id.  



          89       Johnson v. Johnson , 2             39 P.3d 393, 400 (Alaska 2010) (quoting  United  



Servs. Auto. Ass'n v. Pruitt ex rel. Pruitt, 38 P.3d 528, 535 (Alaska 2001)).  



          90        See BP Pipelines (Alaska) Inc. v. State, D                    ep't of Revenue, 327 P.3d 185,  



197 (Alaska  2014)  ("   'While  we  have  occasionally expressed concern about the use of  

factor (   A) -       complexity   of the litig       ation  -   to   enhance fe        es .   . . we h  ave repeatedly  

upheld its use.' " (quoting  Ware v. Ware, 161 P.3d 1188, 1199 (Alaska 2007))).  



                                                             -42-                                                       7057
  


----------------------- Page 43-----------------------

superior court abused its discretion when it awarded the Realtors 35% of their actual  



fees.  



V.      CONCLUSION  



               We AFFIRM the superior court's judgment.  



                                               -43-                                        7057
  

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