Nixon v. The Northstar Group, Inc.

Background

Roderick Nixon, a photographer known professionally as “Nitro,” owned the rights to four photographs depicting well-known hip-hop artists. He had registered the photographs with the Copyright Office. Source Digital, Inc. (SDI), which operates The Source’s digital platforms, posted the photographs on its @thesource Instagram account without Nixon’s authorization. The photographs were posted in five Instagram posts in 2019, 2020, and 2023. SDI removed the posts after receiving Nixon’s cease-and-desist letters.

Nixon moved for summary judgment—a ruling entered when no genuine dispute of important fact requires a trial—on copyright infringement and willfulness against SDI. He also sought summary judgment on vicarious liability and contributory infringement against Northstar Source Group, LLC (Northstar), even though Northstar was not named as a defendant and was not a party to the case. In his reply, Nixon alternatively argued that summary judgment on those claims should be entered against SDI.

Copyright infringement and fair use

The court held that Nixon established the elements of copyright infringement: ownership of valid copyrights and SDI’s copying of protected portions of the photographs. The court found that SDI’s posts violated at least Nixon’s exclusive rights to reproduce, publicly display, and create derivative works from the photographs.

SDI asserted fair use, an affirmative defense that can excuse otherwise infringing conduct in certain circumstances. The court rejected that defense as a matter of law. It concluded that SDI’s use was not transformative because SDI posted the photographs in their entirety without altering them, while adding only short captions and hashtags. The court found that the captions generally identified the people in the photographs or provided limited background, and that the hashtags did not amount to meaningful commentary.

The court also found that SDI’s use was commercial. Although the Instagram posts did not themselves contain advertisements, SDI linked its Instagram account to a website that generated advertising revenue and had used Instagram for promotional campaigns. The photographs’ creative-versus-factual character did not strongly favor either side, and their prior publication favored SDI as to at least some posts. But copying the photographs in full weighed against fair use, as did the effect on the market because SDI used the photographs commercially without paying a customary licensing fee. Weighing all the factors, the court ruled that SDI’s fair-use defense failed as a matter of law.

Willfulness

The court denied summary judgment on whether SDI’s infringement was willful. Willfulness can be shown by proof that SDI knew about the infringement or recklessly disregarded or deliberately ignored Nixon’s copyright rights. The court found that the record did not establish willfulness as a matter of law. A factfinder could consider SDI’s copyright policies and its prompt removal of the posts after receiving the cease-and-desist letters in deciding that SDI lacked actual knowledge, reckless disregard, or deliberate ignorance. The willfulness issue therefore remained for a factfinder.

Vicarious liability and contributory infringement

The court denied Nixon’s motion concerning vicarious liability and contributory infringement against Northstar and/or SDI. Northstar was not named in the operative complaint, was not a party, and had no attorney formally appearing on its behalf. The court also declined to consider Nixon’s new request for summary judgment against SDI because he raised that argument for the first time in his reply. In addition, Nixon’s pre-motion letter had not disclosed that he intended to seek summary judgment on those claims, and the court had not authorized briefing on them.

Disposition

The court granted summary judgment in favor of Nixon on his copyright infringement claim against SDI concerning the four photographs. It denied Nixon’s motion as to willfulness and denied the motion as to the vicarious-liability and contributory-infringement claim. The court directed the Clerk of Court to terminate the motion at Docket Number 38.