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Barry Z. Levine v. Elliot Landy & Landyvision

December 30, 2011


The opinion of the court was delivered by: David N. Hurd United States District Judge



Plaintiff Barry Z. Levine ("plaintiff" or "Levine") brought suit against Elliot Landy ("Landy") and his company, Landyvision, Inc. ("Landyvision") (collectively "defendants") asserting a total of twenty-one causes of action, including copyright infringement, unjust enrichment, conversion, unfair competition, and that an accounting is due.

Defendants moved to dismiss certain claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposed.*fn1 Oral argument was heard in Utica, New York on December 9, 2011. Decision was reserved.


A. Facts

The following facts, taken from the complaint and incorporated documents, are accepted as true for purposes of the motion to dismiss. Plaintiff attended and took photographs at the 1969 Woodstock music festival. In 1979, he entered into an oral agreement with Landy, under which Landy would license plaintiff's photographs and remit royalty payments received from the licensing to plaintiff. As part of this agreement, plaintiff provided defendant the original slides of his photographs.

In 1994, Levine agreed to license five of his photographs for use in a book published by Landyvision, Inc. titled "Woodstock 1969--The First Festival" (the "1994 book"). In late 2007 through early 2008, the parties discussed collaborating on a reprint of the 1994 book but did not reach an agreement. By August 2008, the parties' relationship had soured and Levine terminated his business relationship with Landy.

According to plaintiff, on November 3, 2008, French publisher Fetjaine published a French reprint of the 1994 book (the "Fetjaine book") in France, with Landy's authorization. Plaintiff contends his photographs were used in that book without his permission and some of the works misrepresented Landy as the photographer. Plaintiff also contends defendants used additional photographs without his consent and without crediting him in a 2009 book they published, titled "Woodstock Vision--The Spirit of a Generation"; on defendants' website; on non-party website; and in a 2009 book published by non-parties Brad Littleproud ("Littleproud") and Joanne Hague ("Hague"), titled "Woodstock: Peace, Music and Memories." Finally, Levine asserts defendants published, distributed, and/or copied some of his photographs, with his permission, but without remitting payment to him as agreed by the parties.

B. Copyrighted Works

Plaintiff alleges he is "the copyright author and owner of all of Plaintiff's Woodstock Photographs, whether such photographs are registered or unregistered with the U.S. Copyright Office." Compl., Dkt. No. 1, ¶ 38. The complaint identifies eight registered copyrights, id. ¶¶ 40--47, and three pending applications for copyrights, id. ¶¶ 48--50. Since the filing of the complaint, the three pending applications have been approved, bringing the total registered copyrights identified in the complaint to eleven. See Decl. of Annette I. Kahler, Exs. A--B, Dkt. No. 13-2; Letter of Annette I. Kahler, Dkt. No. 18. Many of the registrations are for collections which include multiple photographs. The registration certificates attached to the complaint do not indicate which photographs comprise the collections. Therefore it is difficult to determine precisely how many photographs in total are involved in this lawsuit.*fn2

Not all the photographs identified in the complaint are alleged to have been infringed. Eleven photographs are identified as the subject of the copyright infringement claims (Counts 1--17) ("Group A photographs"). At oral argument, plaintiff's counsel indicated there are some photographs involved in this lawsuit for which defendants had authorization to distribute, publish, and/or reproduce (and thus were not infringed upon), but for which payments were never remitted to plaintiff ("Group B photographs"). Group B photographs therefore do not include those eleven photographs identified in Counts 1--17, the copyright infringement claims. The distinction between Group A and Group B photographs is particularly important in analyzing whether Levine's unjust enrichment claim and demand for an accounting are preempted by the Copyright Act.


Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(6) dismissing all claims relating to the Fetjaine book; claims relating to unregistered copyrights; claims for statutory damages and attorneys' fees; infringement claims involving third parties; and plaintiff's Lanham Act, New York State statute, and common law claims as preempted by the Copyright Act.

A. Legal Standard

When deciding a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff's factual allegations must be accepted as true and all reasonable inferences must be drawn in favor of the plaintiff to assess whether a plausible claim for relief has been stated. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555--61, 127 S. Ct. 1955, 1964--67 (2007); Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1953 (2009) (holding that the pleading rule set forth in Twombly applies in all civil actions). The factual allegations must be sufficient "to raise a right to relief above the speculative level," crossing the line from conceivable to plausible. Twombly, 550 U.S. at 555, 127 S. Ct. at 1965. Additionally, "a formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S. Ct. at 1965. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).

Thus, in reviewing the sufficiency of the pleading, a court first may identify legal conclusions that "are not entitled to the assumption of truth." Id. at 1950. The court should then "assume [the] veracity" of "well-pleaded factual allegations . . . and determine whether they plausibly give rise to an entitlement to relief." Id.

B. Fetjaine Book Published in France (Counts 1, 3, 4, 6, 8, 9, 10, and 14)

Defendants argue the copyright infringement claims involving the book published in France must be dismissed because the court does not have subject matter jurisdiction over infringement which occurred outside the United States.

It is well established that copyright laws generally do not have extraterritorial application. Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 73 (2d Cir. 1988). The Second Circuit has recognized an exception to this rule when there is a qualifying predicate infringing act in the United States. Id. For the exception to apply, a plaintiff must show the conduct: (1) took place in the United States and (2) was in violation of the Copyright Act. See id. A violation of the Copyright Act occurs when an infringer violates one of the exclusive rights of a copyright owner in § 106 of the Copyright Act. 17 U.S.C. § 106. Under § 106, a copyright owner has the exclusive rights to do and to authorize any of the following:

(1) reproduce the copyrighted work; (2) prepare derivative works; (3) distribute copies of the work by sale or otherwise; and, with respect to certain artistic works, (4) perform the work publicly; and (5) display the work publicly. See id. To allege a predicate act, plaintiff must assert defendants violated one of the above mentioned rights within the United States. It should be noted that inducement and causation, alone, are not violations under § 106.

The complaint alleges defendants "copied, distributed, and published, caused to have published, or induced the publication of" various photographs as part of the Fetjaine book. Compl., ¶¶ 54, 70, 78, 95, 111, 118, 127, 158. It also states Landy "authored and published" the book in connection with publisher Fetjaine; "published, caused to be published, or induced the publication" of the book; intentionally misrepresented plaintiff as associated with the book; and misrepresented some of the photographs as Landy's when they were actually plaintiff's. Id. ¶¶ 25--27. Finally, it is undisputed plaintiff did not consent to the use of his photographs in the Fetjaine book and that since 1979, defendant maintained physical possession of plaintiff's original Woodstock slides.

Making all reasonable inferences in plaintiff's favor as must be done on a motion to dismiss, the complaint alleges defendants engaged in conduct in the United States, which if true, would be in violation of the Copyright Act. While inducement and causation by defendants are not alone enough to qualify as predicate infringing acts in the United States, plaintiff has alleged defendants engaged in direct infringement and violations under § 106, including copying, distributing, and publishing his photographs. If after the course of discovery, the evidence demonstrates that defendants merely induced or caused publisher Fetjaine to infringe plaintiff's copyrights, defendants may potentially succeed on a summary judgment motion. On the present facts, defendants' motion to dismiss claims involving the Fetjaine book will be denied.

C. Unregistered Copyrights- 17 U.S.C. § 411 (Counts 5, 11, 12, 13, 14, 15, 16 and 17)

Defendants contend eight causes of action relating to unregistered works must be dismissed. According to defendants, the following four works are unregistered: (1) the Richie Havens photograph in Count 5; (2) the Leo Lyons photograph in Counts 11, 12, and 13; (3) the Grace Slick photograph in Counts 14 and 15; and (4) the Aerial View 2 photograph in Counts 16 and 17.

Section 411 of the Copyright Act mandates that, "no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title." 17 U.S.C. § 411(a).

Following the filing of the complaint and the briefing of the instant motion, plaintiff received registration certificates for all four of the works at issue. The Leo Lyons and Aerial View 2 photographs have an effective registration date of August 30, 2011. The Richie Havens and Grace Slick photographs have an effective registration date of August 31, 2011. Therefore plaintiff possesses registered copyrights for all of the works identified in the copyright infringement claims (Counts 1-17) and defendants' motion to dismiss Counts 5, 11, 12, 13, 14, 15, 16, and 17 will be denied.

D. Statutory Damages and Attorneys' Fees- 17 U.S.C. § 412 (All copyright infringement claims, Counts 1--17)

Defendants contend plaintiff is prohibited from claiming statutory damages and attorneys' fees because all of the alleged infringement commenced prior to the registration of his copyrights with the United States Copyright Office.

Section 504 of the Copyright Act sets forth the types of remedies a plaintiff may seek in a lawsuit for copyright infringement. That section provides a plaintiff with the option of electing one of two types of remedies: "(1) the copyright owner's actual damages and any additional profits of the infringer . . . or (2) statutory damages." 17 U.S.C. § 504(a)(1)(2). Additionally, § 505 provides that the court in its discretion may award attorneys' fees and costs to the prevailing party. 17 U.S.C. § 505. However, the Copyright Act limits the availability of statutory damages and attorneys' fees to only those plaintiffs who registered their copyright prior to the commencement of the infringement. Specifically, § 412 of the Copyright Act provides that:

[N]o award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for . . . any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work. 17 U.S.C. § 412(2). Therefore, to determine which photographs, and ultimately under which causes of action plaintiff may elect statutory damages and/or attorneys' fees, special attention needs to be given to the date of registration and date of infringement for each work.*fn3

Plaintiff alleges the photographs in the Fetjaine book (Counts 1, 3, 4, 6, 8, 9, 10, and 14) were infringed on November 3, 2008, the date the book was published. According to the complaint, the photographs in Counts 1, 3, 4, 6, 8, and 10 were all registered some time in October 2008, prior to the November 3, 2008, infringement and thus claims for statutory damages and attorneys' fees for these counts may proceed. The Janis Joplin photograph in Count 9 was not registered until April 22, 2009. Since the November 3, 2008, infringement date pre-dates the April 22, 2009, copyright registration, plaintiff cannot obtain statutory damages or attorneys' fees for Count 9. Count 14 involves the Grace Slick photograph which was not registered until August 31, 2011, but alleged to be infringed on November 3, 2008. On those facts, Levine cannot elect statutory damages or attorneys' fees. However, that photograph was first published on August 30, 2011, potentially entitling plaintiff to such relief under the latter part of § 412(2) providing an exception to the general timeline if "such registration is made within three months after the first publication of the work." 17 U.S.C. § 412(2). Therefore defendants' motion to dismiss the request as to Count 14 will be denied.

Counts 2, 5, 7, 13, and 17 allege defendants infringed plaintiff's copyrights by posting his photographs to certain websites. The photographs in Counts 2 and 7 were registered on October 31, 2008. According to plaintiff, these photographs were displayed at an unknown date and for a lengthy period. Even drawing all reasonable inferences in plaintiff's favor, he has not alleged any date, which if true, would entitle him to the relief he requests. Therefore he cannot elect statutory damages and attorneys' fees for Counts 2 and 7. With respect to the remaining ...

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