Bayoh v. Afropunk Fest 2015 LLC

Background

Mambu Bayoh was hired by Afropunk in 2015 to provide photographs for the 2015 Afropunk music festival in Brooklyn, New York. He was paid $1,200 and provided 28 photographs. The parties soon disputed the scope of the license Bayoh had granted Afropunk.

Bayoh applied for copyright protection for the photographs in June 2017 and July 2018, and filed this lawsuit on June 27, 2018, seeking damages and injunctive relief for alleged copyright infringement. Because of the delay in registering the photographs, he could not seek statutory damages or attorneys’ fees for infringement he might prove. The court had issued an unopposed preliminary injunction on July 11, 2018, before the defendants appeared.

After discovery, the court scheduled a jury trial. In the pretrial order, Bayoh sought damages but did not list injunctive relief as an issue. At a pretrial conference, he said he would rely on his own testimony, a former defendants’ employee, and two experts regarding the defendants’ profits. The court granted the defendants’ motion to exclude the experts’ testimony. The court stated that Bayoh then had no proof of damages to offer at trial and lost the right to a jury trial.

Bayoh subsequently asserted, for the first time since filing his amended complaint, that he wanted a permanent injunction. The court allowed him to pursue that relief despite the omission from the pretrial order and scheduled a two-phase non-jury trial beginning with the issue of irreparable harm. The parties were required to submit affidavits containing their witnesses’ direct testimony unless the court granted an exception.

Permanent-injunction standard

A permanent injunction is an equitable remedy that a court may grant only if the plaintiff proves four elements: irreparable injury; inadequate legal remedies such as monetary damages; a balance of hardships favoring equitable relief; and consistency with the public interest. In copyright cases, irreparable harm can include a loss that is difficult to replace or measure, but a permanent injunction ordinarily requires a threat of continuing or additional infringement. A delay in seeking the injunction also weighs against granting it.

Court’s analysis

Bayoh’s November 20 submissions did not provide evidence of irreparable harm. He submitted screenshots, older materials attached to his amended complaint, and an affidavit from Afropunk employee Allen Lamb. The court found that the screenshots and other materials did not show that Afropunk had posted or added Bayoh’s photographs after the preliminary injunction was entered. At most, they suggested that Afropunk had failed to remove all photographs from websites and social-media accounts.

The court also found that Bayoh had not shown financial injury. Bayoh was not a commercial photographer, did not license his photographs, and offered no evidence of financial harm from Afropunk’s alleged use beyond the license. The court rejected Bayoh’s argument that the loss of potential monetary remedies made an injunction appropriate, explaining that an injunction was not a remedy for the fact that he could not seek statutory damages and attorneys’ fees and had no evidence of actual damages.

The court found no evidence of a likely recurring violation. The Lamb affidavit stated that Afropunk had taken steps to remove the images, had no desire or economic incentive to use them, and would search for and remove any remaining images on platforms it controlled. The court also relied on Bayoh’s delay: he did not renew his request for permanent injunctive relief until after his damages experts were excluded, and he waited more than two years after the preliminary injunction to complain about alleged continuing violations.

As to Matthew Morgan and Jocelyn Cooper, the court found no evidence that either individual had posted Bayoh’s photographs on personal social-media accounts. The opinion also states that their employment with Afropunk had ended months earlier.

Disposition

The court held that Bayoh had failed to show irreparable harm by Afropunk or the two individual defendants. It cancelled the December 17, 2020 non-jury trial and denied Bayoh’s request for a permanent injunction. Because the first required element was absent, the court found it unnecessary to hold a trial on the remaining elements of permanent injunctive relief.