Opinaldo v. Francesca Simons Consulting Inc.

Background

The opinion consists of a letter-motion from counsel newly engaged to represent Francesca Simons Consulting Inc. The letter states that the plaintiff alleges that one of the defendant’s Instagram posts infringed the plaintiff’s copyright in a celebrity photograph.

The defendant’s counsel said the complaint was filed on April 6, 2020, and that the defendant was served through the New York Secretary of State on April 10. Counsel stated that the defendant’s response deadline was May 1, but that the defendant did not receive notice of the lawsuit until the week of May 11 because the address on file with the Secretary of State was the accountant’s office and the pandemic caused delays. The defendant requested an extension to June 15, stating that the plaintiff’s counsel had agreed to the extension by email.

Requests in the Letter-Motion

The defendant also asked the court to require the plaintiff or the plaintiff’s lawyer to post security for costs under Local Civil Rule 54.2. Counsel characterized the case as a copyright “trolling” case and cited decisions from other courts involving the plaintiff’s lawyer. The letter also stated that the plaintiff had not filed Form AO 121, a copyright-related filing form, despite being notified of the omission by the Clerk.

The defendant further asked the court to compel production of the photograph’s licensing history and documents showing that the photograph was included in the copyright registration cited in the complaint. The letter stated that those documents were relevant to registration and to evaluating potential damages and settlement. The defendant also asserted that the complaint’s exhibits appeared to support a possible fair-use defense, but the order did not decide that defense.

Ruling

The court stated: “Application granted in part and denied in part.” The court gave the defendant until a date in June 2020 to respond to the complaint; the exact day is unclear in the provided text. The court directed the plaintiff to file Form AO 121 and produce the relevant copyright-registration documents no later than June 5; the year is garbled in the provided text but the order is dated May 26, 2020.

The court denied at this time the defendant’s request for an order requiring the plaintiff to post security and the request for an order compelling production of the photograph’s licensing history. The court encouraged the plaintiff to produce relevant licensing documents for purposes of furthering settlement discussions. The court did not resolve the copyright claim, the possible fair-use defense, or the parties’ ultimate merits positions.