Davidson v. 925 LLC dba 9to5Mac

Background

Bruce Cameron Davidson, a professional aerial photographer, alleged that he owned a photograph titled “MM8746_180921_4510,” showing Apple’s headquarters at night. He alleged that he registered the photograph as part of a group registration on February 23, 2019, and displayed it on his professional website with copyright management information, including metadata, copyright notices, and visible and invisible watermarks.

Davidson alleged that 925 LLC copied and displayed the photograph on the 9to5Mac website without a license or permission. He also alleged that 925 removed the information identifying him as the photographer. After Davidson notified 925 of the alleged violations, 925 told him that the image had been deleted from its server.

Davidson asserted two claims: copyright infringement under the Copyright Act, 17 U.S.C. § 106, and removal of copyright management information under the Digital Millennium Copyright Act, 17 U.S.C. § 1202(b). 925 moved to dismiss both claims under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not allege enough facts to support a legally plausible claim.

Copyright-Infringement Claim

The court held that Davidson had adequately pleaded copyright infringement. At this stage, the court accepted well-pleaded factual allegations as true and drew reasonable inferences in Davidson’s favor.

The court rejected 925’s argument that the photograph was not original. It explained that a photograph can satisfy the low originality requirement when the photographer makes creative choices involving factors such as lighting, angle, timing, and composition. Davidson alleged that he used drones and his photography skills to plan and capture the photograph’s particular lighting and angle. The court concluded that these allegations were enough to plead originality.

The court also rejected 925’s argument that Davidson had not shown proper registration. Although the registration certificate did not itself clearly identify the photograph as part of a group registration, Davidson alleged that he registered the photograph as part of a group and provided the registration he identified as corresponding to the photograph. The court found those allegations sufficient at the motion-to-dismiss stage.

The court further ruled that 925’s fair-use argument was premature. Fair use is a defense that often depends on facts outside the complaint, including the purpose of the use, the nature of the copyrighted work, how much of the work was used, and the effect on its market. The court found that the amended complaint and its attached materials did not establish fair use clearly enough to dismiss the claim.

Copyright-Management-Information Claim

The court also held that Davidson adequately pleaded a claim under section 1202(b) of the Digital Millennium Copyright Act. Copyright management information includes identifying information about a work’s author or copyright holder, such as a name, title, or other identifying information.

Davidson alleged that his original photograph contained metadata, copyright notices, and watermarks; that 925 displayed the photograph without those attributions; and that 925 knowingly removed or distributed the photograph without that information in a way that enabled or facilitated infringement. The court found these allegations sufficient to support the required inferences of knowledge and intent at the pleading stage.

The court also relied on Davidson’s attached example of the allegedly altered photograph, which had been cropped above the location of the “© CAMERON DAVIDSON” watermark. The court stated that questions about 925’s role in removing the information and whether its use was innocent could be addressed through discovery and later proceedings.

Disposition

The court denied 925 LLC’s motion to dismiss in its entirety. The ruling allowed both claims to proceed; it did not finally determine whether 925 infringed Davidson’s copyright, removed copyright management information unlawfully, or could ultimately establish fair use. 925 was directed to answer or otherwise respond to the amended complaint by January 27, 2025. The parties were also directed to meet and confer and submit a case-management plan and scheduling order.