Sadowski v. Admerasia Inc.

Background

Christopher Sadowski, a professional photographer and independent contractor for the New York Post, sued Zan Ng, doing business as two websites, Admerasia, Inc., and unidentified defendants. He alleged that three photographs he had registered with the United States Copyright Office appeared on the websites without authorization. He also alleged that the defendants intentionally removed or falsified copyright management information, such as his photographer credit.

Sadowski brought two claims. Count I alleged copyright infringement under the Copyright Act and sought damages and injunctive relief. Count II alleged that the defendants violated the Digital Millennium Copyright Act by intentionally removing or altering copyright management information to induce, enable, facilitate, or conceal infringement. After discovery, Sadowski moved for partial summary judgment on Count I. Ng and Admerasia cross-moved for summary judgment on both counts.

Copyright ownership and standing

The court held that Sadowski had standing to bring the infringement claim. His agreement with the New York Post gave the Post a nonexclusive license to use the photographs, but that license did not transfer ownership of Sadowski’s exclusive copyright rights. The court also found no dispute that Sadowski owned valid copyrights in the three photographs and that the websites displayed the photographs without authorization.

Count I: Copyright infringement

Admerasia’s direct liability

The court denied the defendants’ motion for summary judgment on Admerasia’s direct liability. The parties disputed who owned and operated the websites. Domain-registration information connected the websites to Admerasia or an Admerasia employee and used Admerasia email addresses, while Ng testified that Admerasia had never owned, operated, or controlled the websites.

The court concluded that resolving this dispute would require assessing Ng’s credibility, which is not permitted on summary judgment. A reasonable jury could reject Ng’s testimony and conclude that Admerasia owned and operated the websites. There was also a factual dispute about whether website administrators reviewed and decided what content appeared on the websites. If Admerasia owned the websites and its administrators posted the photographs, Admerasia could be directly liable for infringement.

Ng’s direct liability

The court granted the defendants’ motion for summary judgment on Ng’s direct liability. A corporate officer may be personally liable for infringement if he personally participated in the infringing acts. The court found that the limited discovery did not show that Ng directly sourced or posted the photographs. Because Sadowski offered only conclusory allegations and no evidence of Ng’s direct involvement, the court concluded that no reasonable jury could find Ng directly liable on the record presented.

Vicarious and contributory liability

The court denied Sadowski’s motion for summary judgment on his theories that Ng and Admerasia were vicariously or contributorily liable, and granted the defendants’ motion on those theories. Vicarious liability generally requires the ability to supervise the infringement and a direct financial interest in it. Contributory liability generally requires intentionally inducing or encouraging another person’s direct infringement.

The court noted that Sadowski raised these theories for the first time in his summary-judgment motion. His amended complaint alleged facts consistent with direct infringement but did not allege facts supporting the required elements of vicarious or contributory liability. The court also found that the current record did not substantiate those theories. It therefore would not consider them at that late stage, after discovery had closed.

Affirmative defenses

Because factual disputes remained about Admerasia’s status and possible direct liability, the court did not decide Admerasia’s other affirmative defenses at that time. The court did state that the defendants had waived their license defense because they did not raise it in their answer.

Count II: Copyright management information

The court granted the defendants’ motion for summary judgment on Count II. Sadowski relied on screenshots of the photographs on the websites as the only evidence potentially supporting his claim that copyright management information had been removed. The court said it did not need to decide whether Sadowski’s copyright information actually appeared on the websites because the record could not support a finding that the defendants acted with the required intent to induce, enable, facilitate, or conceal infringement.

Disposition

The court denied Sadowski’s motion for partial summary judgment. It granted in part and denied in part Ng and Admerasia’s motion for summary judgment. The remaining issue was Admerasia, Inc.’s direct liability for copyright infringement, and the court directed the parties to submit a timeline for a trial beginning in August 2022 or later.