Jeremih Can't Avoid Photog's Secondary Copyright Infringement Claims & Model's Publicity Claim Over Album Cover

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."

Questions Whether LiveNation Willfully Infringed Run-DMC Photos; 9th Cir.

Friedman v. Live Nation Merch., No. 14-55302 (9th Cir. Aug. 18, 2016).

In a copyright dispute over the use of photographs that the plaintiff took of the hip hop group Run-DMC, defendant Live Nation stipulated that it infringed the plaintiff photographer's copyrights when it used his photos without his authorization on t-shirts and a calendar.  Before the 9th Circuit was the question of whether there was sufficient evidence in the record to permit a jury to conclude that Live Nation committed willful copyright infringement, making it liable for additional damages under 17 U.S.C. § 504(c)(2); whether a jury could conclude that Live Nation knowingly removed copyright management information (“CMI”) from the photographs in violation of 17 U.S.C. § 1202(b) [the DMCA]; and whether the plaintiff could recover statutory damages awards under section 504 of the Copyright Act measured by the number of retailers who purchased infringing merchandise from Live Nation, even though the plaintiff photographer did not join those retailers as defendants in his suit.

The 9th Circuit held: (1) that there was a triable issue of fact as to whether Live Nation’s infringement was willful, and that the district court therefore erred in granting summary judgment to Live Nation on willfulness; (2) the plaintiff photographer could prevail upon a showing that Live Nation distributed his works with knowledge that copyright management information had been removed, even if Live Nation did not remove it, and accordingly summary judgment should not have been granted because there was a triable issue of fact as to whether Live Nation distributed the photographs with the requisite knowledge; and (3) the district court correctly held that the plaintiff photographer was limited to one award per work infringed by Live Nation because he did not name any of the alleged downstream infringers as defendants in the case ("A plaintiff seeking separate damages awards on the basis of downstream infringement must join the alleged downstream infringers in the action and prove their liability for infringement. ").  Notably, on third question involving downstream infringers, the 9th Circuit rejected a "mass marketing" exception that some lower courts had adopted.

Court Has Jurisdiction Over King Of Pop's Executors In Photo Shoot Case, But Plaintiff's Counsel Disqualified As A Witness

Noval Williams Films v. Branc, 14-cv-4711 (S.D.N.Y. Sep. 3, 2015) [Doc. 43].

In a case where Plaintiff film matker sought a declaratory judgment against Michael Jackson's estate that it did not infringe the copyrights in certain audivisual and photographic materials by using them in a documentary film, the Court denied Michael Jackson's executor's motion to dismiss for lack of jurisdiction, or alternatively to transfer to California federal court.  However, the executor's motion disqualify plaintiff's counsel was granted because he is a material witness.

New York Law On Photographing And Recording Concerts

In researching for an unrelated matter, I came across New York's Arts and Cultural Affairs Law § 31.01.  The law was enacted in 1983.  Imagine how it might apply today, with the abundance of iPhones and other smart-phones with image capturing and sound recording capabilities.

The statute prohibits, inter alia, the taking of photographs or making of sound recordings of any performance presented in a theater "without having first obtained the written consent of the management to do so."  Remedies for the management include bringing an action for an injunction, an accounting, or for damages resulting from or in respect of any photographs or sound recordings of any performance made without the consent required or resulting from or in respect of any distribution or attempted distribution of any such photographs or sound recordings or reproductions thereof.

Further, the statute provides that management shall have the right to request and obtain possession of photographic or sound recording devices until the conclusion of the performance.  Failure by any person admitted or seeking admission to a theatre in which a performance is to be or is being presented, refuses or fails to give or surrender possession of any photographic or sound recording device which such person has brought into or attempts to bring into such theatre without having first obtained the written consent of the management to do so, then the management shall have the right to remove such person therefrom or refuse admission thereto to such person, and shall thereupon offer to refund and, unless such offer is refused, refund to such person the price paid by such person for admission to such theatre. 


If such person refuses to leave such theatre after having been informed by the management thereof that possession of any photographic or sound recording device in such theatre without the written consent of the management is prohibited, then such person shall be deemed to be remaining in the theatre unlawfully, and in addition, the management shall have the right to maintain an action in trespass and for punitive damages against such person.  

The criminal penalties and civil remedies provided by the statute are without force or effect unless the management of the theatre shall have posted signs at the box office and at or near the audience entrance to the portion of the theatre wherein the performance is to be presented and printed in any program which may be furnished to the audience for such performance, stating in substance as follows: "WARNING The photographing or sound recording of any performance or the possession of any device for such photographing or sound recording inside this theatre, without the written permission of the management is prohibited by law. Offenders may be ejected and liable for damages and other lawful remedies."

There are no reported cases under this statute.

 

Sex Pistols Photo Infringed By Artist

Morris v. Young, No. 12-cv-00687 (C.D. Cal. filed 1/28/2013) [Doc. 29].

Plaintiff sued defendant seeking damages for copyright infringement and an injunction enjoining defendant from further infringement of Plaintiff's photograph of the musicians Sid Vicious and Johnny Rotten of the punk rock bank, the Sex Pistols.  Sometime in the mid-2000s, defendant created a series of works based on images of the Sex Pistols that he found on the Internet.  None of the images defendant used in this series contained copyright notices, and defendant therefore believed they were in the public domain.  Among the unmarked images defendant found on the Internet was the subject photograph.  Defendant used the image of the Subject Photograph he found on the Internet to create several works that are the subject of this case.  Prior to the initiation of this lawsuit, Young Defendant earned a total of $8,940 from sales of the accused works.

First, the Court found that plaintiff had established ownership of a valid copyright in the photograph.  Next, the Court focused on actionable copying.  Plaintiff can establish copying either by direct evidence of copying or by showing that defendant (1) had access to the work and (2) that the two works are substantially similar in idea and expression. It was undisputed that defendant found an image of the Subject Photograph on the Internet and copied it to make the Accused Works. "Accordingly, the Court need not rely on evidence of access and substantial similarity to determine whether a copying took place because the undisputed evidence shows that Young copied the Subject Photograph."

Next, the Court underwent a "fair use" analysis.  First, the commercial nature of the use weighed against a finding of fair use.  Additionally, the Court found that defendant's work added only marginal artistic innovation to the photograph to change the aesthetic expression of the work.  Moreover, it did not appear that defendant intended any distinct purpose or message when creating the works.  The use was, thus, not transformative.  Second, the court found that the nature of the copyrighted work was creative and thus weighed against a finding of fair use.  Third, the Court considered whether the amount of the work used was reasonable in relation to the purpose of the copying; defendant used most or all of the subject photograph to create his works and this weighed against fair use.  Finally, the Court considered the effect of the use on the potential market or value of the copyrighted work.

Accordingly, the court granted Plaintiff summary judgment on one of the works.  However, the Court found questions of fact on the fair use defense for another of the works.

Music Photos Suit

Lawrence Martin Temme v. Sony Music Entertainment, Index No. 11-650342 (Sup. Ct., N.Y. Co. filed 2/8/2011).

Complaint for negligence and conversion. Plaintiff, a freelance music photographer, alleges that over the course of his 20 years in the music industry, he has photographed some of the biggest names in popular music. Plaintiff alleges that the defendant has lost or converted thousands of valuable photographic images belonging to the Plaintiff. Plaintiff seeks $500,000 in damages based on the defendant's alleged breach of bailment, its negligence, and its conversion of the plaintiff's property.