Lixenberg v. Media

Background

Dana Ruth Lixenberg alleged that she owns a registered copyright in a 1996 photograph of the musician known as the Notorious B.I.G. She alleged that Complex Media reproduced the photograph on its website without her authorization or attribution. The webpage displayed the photograph with a “BY COMPLEX STAFF” byline and Complex Media branding.

Lixenberg asserted a copyright-infringement claim and claims under sections 1202(a) and 1202(b) of the Digital Millennium Copyright Act (DMCA). Those provisions address false copyright-management information and the unauthorized removal or alteration of copyright-management information. Lixenberg alleged that the photograph had previously appeared with credits identifying her as the author, but that Complex Media removed that information and added its own branding and byline.

Complex Media moved to dismiss under Rule 12(b)(6), which tests whether a complaint alleges enough facts to support a legally plausible claim. It argued that the copyright claim was barred by the three-year limitations period, that the Supreme Court’s decision in Rotkiske v. Klemm displaced the copyright discovery rule, and that the DMCA allegations were insufficient. It also sought dismissal of the unidentified Doe defendants.

Copyright Claim

The court denied dismissal based on the statute of limitations. Under the Second Circuit’s discovery rule, a copyright claim accrues when the copyright holder discovers, or with reasonable diligence should have discovered, the infringement. The court rejected Complex Media’s argument that Lixenberg’s experience litigating other copyright matters or her prior knowledge of other infringements involving the same photograph established that she should have discovered this alleged infringement earlier.

The court relied on the Second Circuit’s decision in Michael Grecco Productions, Inc. v. RADesign, Inc., which rejected a separate “sophisticated plaintiff” exception to the discovery rule. The court explained that diligence is a fact-intensive question and that a motion to dismiss is not appropriate unless untimeliness is clear from the complaint. The court also rejected the argument based on Rotkiske, concluding that the discovery rule remains controlling in copyright cases in the Second Circuit.

DMCA Claims

The court held that Lixenberg plausibly alleged a claim under section 1202(b) for removing copyright-management information. Copyright-management information, or CMI, includes information identifying a work’s author or copyright owner when conveyed in connection with the work. The court found that Lixenberg’s allegations about prior publications with credits identifying her as the photographer, together with the attached examples, adequately alleged that CMI existed.

The court also found that Lixenberg plausibly alleged the required knowledge and intent. At the pleading stage, she adequately alleged that Complex Media removed her CMI and knew, or had reason to know, that the removal would facilitate or conceal infringement. The court stated that the DMCA claim could involve Complex Media’s own alleged infringement, not only infringement by third parties.

The court separately held that Lixenberg plausibly alleged a section 1202(a) claim for distributing false CMI. It found that the Complex Media logo and “BY COMPLEX STAFF” byline, considered together with the photograph and the absence of Lixenberg’s credit, could plausibly be understood as identifying Complex Media as the photograph’s author or copyright owner. The court also found the allegations of knowledge and intent sufficient at the motion-to-dismiss stage. It noted that Complex Media could present evidence about the placement and meaning of the branding at summary judgment or trial.

Doe Defendants and Disposition

The court denied Complex Media’s request to dismiss the Doe defendants. Although more than three years had passed since the action began, the court noted that Lixenberg had not yet had an opportunity to use discovery to learn their identities, in part because the case had been stayed while a related appeal was resolved. The court denied dismissal of the Doe defendants without prejudice to Complex Media renewing the request.

The court denied Complex Media’s motion to dismiss. This ruling addressed whether Lixenberg had pleaded plausible claims; it did not determine whether Complex Media or any Doe defendant is ultimately liable for infringement or DMCA violations.