Davidson v. Blankenship Dry Goods LLC

Background

Bruce Cameron Davidson alleged that he created an aerial photograph of Manhattan in 2014, placed a copyright symbol and his name on it, and registered it as part of a group registration in 2015. He alleged that Blankenship Dry Goods LLC later displayed the photograph on its website while promoting the company’s products. According to the complaint, Davidson did not authorize that use and Blankenship cropped the photograph to remove the copyright management information showing Davidson’s ownership.

Davidson asserted claims for copyright infringement and improper removal of copyright management information under 17 U.S.C. § 1202(b)(3). Blankenship moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim.

Fair-Use Defense

Blankenship argued that its use of the photograph was fair use. Fair use is a defense that can permit use of copyrighted material without permission after considering factors such as the purpose of the use, the nature of the copyrighted work, the amount used, and the effect on the work’s potential market.

The court explained that fair use often cannot be decided on a motion to dismiss because it may require facts outside the complaint. The court may decide the issue at that stage only when the facts establishing fair use are clear from the complaint itself. Here, the court concluded that fair use was not clear. Blankenship allegedly used the entire photograph, except for the removed copyright information, in a commercial setting. The court rejected Blankenship’s argument that the use was transformative because the photograph helped customers visualize where the company’s products were made. The court also rejected the argument that the image was used mainly for informational purposes, stating that the complaint indicated the photograph was used to make Blankenship’s products more attractive to customers.

Copyright Ownership and Copyright Information Claims

Blankenship argued that Davidson had not adequately alleged ownership of a valid copyright because the registration certificate did not identify whether it was a group registration of published photographs or include the photograph’s title. The court rejected that argument at the pleading stage because Davidson alleged that the photograph was covered by the registration certificate. The court stated that Blankenship could test the truth of that allegation during discovery.

Blankenship also argued that Davidson had not adequately pleaded a violation of 17 U.S.C. § 1202(b)(3), which prohibits distributing copies of works while knowing that copyright management information was removed or altered without authorization, when the distributor also knows or has reason to know that the distribution will facilitate or conceal infringement. The court found that Davidson alleged that he applied the copyright information when he created the photograph in 2014 and that Blankenship cropped the image to remove it. The court concluded that these allegations plausibly supported the claim, including the allegation that Blankenship knew the information had been removed without Davidson’s authorization.

Disposition

The court denied Blankenship’s motion to dismiss. The Clerk of Court was directed to terminate docket entry 17. Because this was a Rule 12(b)(6) ruling, the classification is procedural: the court decided that Davidson’s allegations were sufficient to continue past the pleading stage, not that Davidson had ultimately proved copyright infringement or improper removal of copyright management information.