Rams v. Def Jam Recordings, No. 15-8671 (S.D.N.Y. Aug. 16, 2016).
Artist Jeremih's Rule 12 motion to dismiss the plaintiffs' secondary copyright infringement claim, and all of the Defendants' motion to dismiss the right of publicity claim under California law, were denied. The case involves the use of a photo on an album cover on the hit single "Don't Tell 'Em"; the plaintiff photographer alleged copyright infringement against the artist and label, and the plaintiff model alleged violation of her right of publicity.
As to the contributory infringement claim against the defendant artist, the Court held that the photographer stated a claim. "Drawing all reasonable inferences in favor of Plaintiffs, it is plausible that ... the recording artist, whose work is distributed by UMG under the Def Jam label, would have reason to know of the infringing use of the Subject Image on his own album cover."
As to the vicarious infringement claim against the defendant artist, again the Court held that the photographer stated a claim. "Plaintiffs state a plausible claim that, as a recording artist...[he] had the right and ability to supervise the selection of cover artwork for his own 'Don't Tell 'Em' single." Further, the Court found that the complaint sufficiently alleged that the artist benefited financially from the infringement.
As to the model's right of publicity claim, the Court first addressed whether the law of Denmark applied (where the model resides) or whether instead California law applies. California's choice of law rules applied because the case had been transferred to New York from California district court. Accordingly, the Court applied the "governmental interest" test under California law, and held that California law should apply. "Under California law, Rams has sufficiently alleged that Defendants knowingly distributed and profited from the use of her image throughout California without her consent, violating her right of publicity."