Lixenberg v. Complex Media, Inc.

Background

Dana Ruth Lixenberg alleged that she created and exclusively owned the rights to a photograph of the Notorious B.I.G. The photograph was registered with the United States Copyright Office. She alleged that Complex Media, Inc. and ten unidentified individuals copied, displayed, and distributed the photograph without permission in an article posted on Complex’s website on May 21, 2016.

Lixenberg alleged that she discovered the use around September 2021 and had no reason before then to know about it. She asserted three types of claims: direct copyright infringement; vicarious and contributory copyright infringement; and violations of the Digital Millennium Copyright Act, or DMCA, involving copyright-management information. The defendants moved to dismiss the First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim, or alternatively under Rule 12(d).

Direct Copyright Infringement

The court held that the direct copyright-infringement claim was barred by the Copyright Act’s three-year limitations period. Applying the Second Circuit’s discovery rule, the court explained that a copyright claim accrues when the copyright holder discovers, or reasonably should have discovered, the infringement.

The court concluded that Lixenberg should have discovered the alleged infringement earlier through reasonable diligence. It noted that she had filed nearly twenty lawsuits since 2015, including at least two earlier copyright actions involving the same photograph. In one of those earlier actions, she alleged that she discovered another infringing use of the photograph on June 23, 2016. The court found it implausible that reasonable diligence would not have led her to discover the Complex use until September 2021. It held that her allegation that she had no earlier reason to know about the use was insufficient by itself to overcome the time bar and dismissed the direct-infringement claim.

Vicarious and Contributory Copyright Infringement

The court dismissed the vicarious and contributory infringement claims for failure to plead sufficient facts. Contributory infringement requires facts showing that a defendant knew of another person’s infringement and materially contributed to it. Vicarious infringement requires, among other things, a direct infringement by another party, the defendant’s knowledge, a right and ability to supervise the infringement, and a financial interest in it.

The court found that Lixenberg did not identify any third party who directly infringed the photograph. It also found that her allegations about the defendants’ knowledge, participation, ability to supervise, and financial interest were conclusory statements that merely recited the elements of the claims. The court therefore dismissed both the vicarious and contributory infringement claims.

DMCA Claims

Lixenberg alleged that the defendants violated the DMCA by removing her copyright-management information from the photograph and by adding false information. Copyright-management information includes the author’s name and other identifying information about the author or copyright owner that is conveyed with a creative work.

For the removal theory, the court held that Lixenberg did not plausibly allege that copyright-management information existed on the photograph in the first place. She did not provide an example of the photograph being published with her information or identify what information the defendants supposedly removed. The court also found that the complaint’s allegation that the defendants intentionally removed the information was conclusory.

For the false-information theory, Lixenberg identified the “Complex” logo on the webpage and the “BY COMPLEX STAFF” byline. The court held that the logo was a generic website imprint, was not located on or near the photograph, and did not communicate anything about the photograph’s authorship or copyright status. It held that the byline appeared below the article title and referred to authorship of the article, not the photograph. Without additional factual allegations, the court concluded that the byline did not plausibly qualify as copyright-management information connected to the photograph. The court dismissed the DMCA claim.

Disposition

The court granted the defendants’ motion to dismiss. The opinion does not add “with prejudice” or “without prejudice” to that disposition. It gave Lixenberg one opportunity to amend the complaint within 30 days, provided she had a good-faith basis to do so, and directed the Clerk of Court to terminate the motions at docket numbers 16 and 29.