Herrick v. Shutterstock, Inc.

Background

Cynthia Herrick, a wildlife photographer, alleged that Shutterstock, a licensing company, offered two of her copyrighted photographs for licensing through a contributor account that allegedly lacked authorization to use them. One photograph had been licensed for use in a textbook, which credited Shutterstock and the contributor account rather than Herrick. Herrick notified Shutterstock of the alleged infringement and demanded compensation. She alleged that Shutterstock removed the photograph from its platform but did not terminate or void existing unauthorized licenses.

Herrick asserted three claims: direct copyright infringement; vicarious and/or contributory copyright infringement; and falsification of copyright-management information under the Digital Millennium Copyright Act. She also alleged two proposed classes involving copyright owners whose works were distributed or licensed without authorization, including owners who notified Shutterstock of alleged infringement.

Motion to Dismiss the False Copyright-Information Claim

Shutterstock moved under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. The court focused on Herrick’s theory of direct liability under Section 1202(a) and did not decide whether Section 1202 supports the secondary-liability theory that Shutterstock addressed in its motion. The court also assumed, without deciding, that Shutterstock’s watermark and the textbook’s source designation could constitute false copyright-management information.

The court held that Section 1202(a) requires a plaintiff to plausibly allege two forms of knowledge and intent: that the defendant knowingly provided false copyright information and did so intending to induce, enable, facilitate, or conceal infringement. The court found that Herrick plausibly alleged Shutterstock learned through her takedown notice that the photograph had been attributed incorrectly. But she did not allege facts showing that Shutterstock provided or distributed the false information after learning it was false.

The court explained that Section 1202(a) prohibits affirmative acts—providing, distributing, or importing false copyright information for distribution—and does not establish liability based solely on a failure to act. It also found no statutory basis for holding Shutterstock directly liable for the textbook publisher’s continued sale of the textbook. The court distinguished cases in which defendants themselves continued displaying, selling, or licensing works with incorrect attribution after learning that the information was false.

The court therefore granted Shutterstock’s motion to dismiss and dismissed Count Three without prejudice. It granted Herrick leave to file an amended complaint within thirty days if she could plead facts adequately stating a false copyright-information claim. The order states that if she did not timely amend or obtain an extension, the court would dismiss Count Three with prejudice. The court advised her to consider the other substantive challenges raised by Shutterstock, many of which it did not decide.

Motion to Strike Class Allegations

Shutterstock also moved under Rule 12(f) to strike the proposed class allegations. The court described such motions as especially disfavored and generally premature when they overlap with issues reserved for class certification. It nevertheless addressed Shutterstock’s arguments because Shutterstock contended that class certification was impossible based on the complaint itself.

Shutterstock argued that the proposed classes were not defined by objective criteria, were improper “fail-safe” classes, and failed the requirements of commonality, typicality, and— for the damages class—superiority. The court rejected the argument that potential administrative difficulty in identifying class members required striking the allegations. It also declined to strike the allegations based on possible fail-safe problems, explaining that any need to modify the class definitions was better addressed at class certification.

At this early stage, the court was not prepared to conclude that individualized questions about copyright ownership, Shutterstock’s knowledge, and its intent made class certification impossible. The court viewed Herrick’s proposed class claims as based on Shutterstock’s general practices after receiving notices of possible infringement. It likewise found that the common factual basis was enough, at the pleading stage, to raise the possibility that the proposed classes could satisfy commonality and typicality. It reached the same conclusion concerning superiority for the proposed damages class.

Disposition

Judge John P. Cronan granted Shutterstock’s motion to dismiss, dismissed Count Three without prejudice, and granted Herrick leave to amend within thirty days subject to the conditions stated in the order. The court denied Shutterstock’s Rule 12(f) motion to strike the class allegations without prejudice to renewal at the class-certification stage. The opinion did not decide whether the proposed classes ultimately should be certified.