Trombetta v. Novocin

Background

Annamarie Trombetta, who represented herself, alleged that WorthPoint Corporation published online posts identifying her as the artist who created a 1972 painting titled “Man with Red Umbrella.” Trombetta alleged that she did not create the painting, that the signature shown was not hers, and that WorthPoint used a biography from her website without permission. She also alleged that the posts misattributed the painting to her, undervalued her work, harmed her reputation, and contributed to the loss of an $8,500 sale.

The defendants relevant to this order were William Seippel, WorthPoint’s founder and chief executive officer, and WorthPoint Corporation. Seippel was alleged to be a Georgia resident, and WorthPoint was alleged to be incorporated in Georgia, although the opinion noted that the company appeared to be incorporated in Delaware. Trombetta communicated with WorthPoint employees and Seippel about removing the posts. She alleged that a similar post appeared in 2017 after she had complained about the earlier post.

Personal Jurisdiction Over Seippel

The court granted the motion to dismiss all claims against Seippel for lack of personal jurisdiction. Personal jurisdiction is a court’s authority to exercise power over a defendant. Applying New York’s jurisdiction statute, the court found that Trombetta had not alleged that Seippel personally conducted business in New York, committed a tort while physically in New York, or satisfied the other requirements for jurisdiction based on an out-of-state act causing injury in New York.

The court also rejected an agency theory. Although WorthPoint’s business contacts could support jurisdiction over the corporation, Trombetta had not adequately connected those contacts to Seippel or shown that he controlled the conduct forming the basis of her claims. The court concluded that Seippel’s email responses to Trombetta did not establish the required personal conduct.

Claims Against WorthPoint

The court dismissed with prejudice—meaning the claims could not be reasserted—Trombetta’s claims under the Lanham Act, the New York Civil Rights Law, and the New York Artists’ Authorship Rights Act because those claims had already been dismissed with prejudice in earlier rulings. The court also dismissed Trombetta’s defamation claim with prejudice. It held that the claim was untimely because New York generally requires a defamation action to be filed within one year of publication, and Trombetta first asserted the claim against WorthPoint in 2020, more than one year after even the alleged 2017 republication.

The court granted the motion to dismiss Trombetta’s contributory copyright infringement claim. Although it was not clear from the complaint that the claim was untimely, Trombetta did not plausibly allege that WorthPoint acted together with Estate Auctions, Inc., or knew or should have known that Estate Auctions had infringed her biography. The allegation that the companies both had connections to eBay and worked together was not enough.

The court denied the motion to dismiss Trombetta’s claims under sections 1202(a) and 1202(b) of the Digital Millennium Copyright Act. Those provisions address false, removed, or altered copyright-management information. The court limited the claims to Trombetta’s biography because she had not alleged that other parts of the online post were registered works. The court found that her allegations—that WorthPoint added its own copyright notice, used her biography without authorization, and continued displaying the material after receiving notice—plausibly supported claims that WorthPoint knowingly used false or altered copyright information to facilitate or conceal infringement.

The court also denied the motion to dismiss Trombetta’s direct copyright infringement and Visual Artists Rights Act claims. It treated the claims as sufficiently presented in the operative complaint and Trombetta’s opposition papers because the complaint contained facts supporting them and she was representing herself. The court found that her allegation that WorthPoint reposted her copyrighted biography on its website plausibly stated direct infringement. It also found that her allegations that WorthPoint associated her name and biography with a visual artwork she did not create plausibly stated a Visual Artists Rights Act claim based on misattribution.

Sur-Reply and Disposition

Trombetta filed a sur-reply without permission. A sur-reply is an additional filing responding to the opposing party’s reply. The court granted the Worthpoint Defendants’ motion to strike the sur-reply and directed that it be removed from the record. The defendants’ motion for permission to respond to that sur-reply was denied as moot.

Judge Abrams held that the Worthpoint Defendants’ motion to dismiss was granted in part and denied in part. Trombetta’s claims against Seippel were dismissed for lack of personal jurisdiction. Against WorthPoint, the claims under the Lanham Act, the New York Civil Rights Law, the New York Artists’ Authorship Rights Act, defamation, and contributory copyright infringement were dismissed with prejudice. Her claims for direct copyright infringement, Digital Millennium Copyright Act violations, and Visual Artists Rights Act violations survived. The court directed the clerk to terminate the pending motions and strike the unauthorized sur-reply.