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Foster v. Lee

United States District Court, S.D. New York

February 25, 2015

LELANIE FOSTER, Plaintiff,
v.
MAY LEE, ERICKA RODRIGUEZ, and LASHPIA CORPORATION, Defendants

Page 224

For Lelanie Foster, Plaintiff: David Leichtman, LEAD ATTORNEY, Robins, Kaplan, Miller & Ciresi, LLP (NYC), New York, NY; Annie Huang, Robins, Kaplan, Miller & Ciresi L.L.P., New York, NY.

For May Lee, owner of JJ eyelashes, Ericka Rodriguez, Marketing Director of JJ Eyelashes, Lashpia Corporation, Defendants: Marc Andrew Williams, LEAD ATTORNEY, The Law Offices of Kwangsoo Kim.

Page 225

OPINION AND ORDER

J. PAUL OETKEN, United States District Judge.

Plaintiff Lelanie Foster brings this action against May Lee, Ericka Rodriguez, and Lashpia Corporation (" Lashpia" ), alleging copyright infringement. 17 U.S.C. § 101, et seq. Defendants move for partial summary judgment on the issue of Foster's entitlement to statutory damages, 17 U.S.C. § 504(c), and attorney's fees and costs, 17 U.S.C. § 505, and for partial summary judgment that Lee and Rodriguez are not personally liable for infringement.

Page 226

Foster moves for partial summary judgment on the issue of Defendants' liability for infringement. For the reasons that follow, Foster's motion is granted in part and Defendants' motion is denied.

I. Background

Foster is a freelance photographer. (Dkt. No. 25, Amended Complaint ¶ 1.)[1] Lashpia, doing business as JJ Eyelashes, produces silk eyelash extensions and owns several salons at which customers can purchase the eyelashes and have them customized and professionally applied. (Dkt No. 33, Declaration of May Lee ¶ 4 [" Lee Decl." ].) In connection with an advertising campaign, Lashpia hired Foster to produce a photograph of a model wearing JJ Eyelashes.

On November 27, 2012, and December 4, 2012, Foster conducted a photo shoot. (Dkt. No. 43, Declaration of Lelanie Foster ¶ 15 [" Foster Decl." ]; Lee Decl. ¶ 7.) According to Foster, at first the " shoots with JJ Eyelashes were solely for the purpose of using prints in the physical premises of the JJ Eyelashes salons, a promotional calendar, or on its web site." (Foster Decl. ¶ 13.) At one of the shoots, though, Foster " verbally agreed to the use of a single retouched version of one of [her] photographs . . . in Allure magazine." ( Id. ¶ ¶ 23-24.) Her " understanding was that the advertisement would be small in scale." ( Id. ¶ 22.) According to Lee, Foster " agreed that the photograph would be the property of Lashpia Corporation with the understanding that Lashpia intended to use to the photograph for its marketing campaign." (Lee Decl. ¶ 10.) The parties' agreement was not reduced to writing.

The photograph appeared in the March 2013 Manhattan subscriber edition of Allure magazine. (Foster Decl. ¶ 26.) When she saw the magazine, Foster became concerned that " the scale and scope of the Allure magazine advertisement was much broader than what Ms. Rodriguez [then an employee of Lashpia] had initially told me." ( Id. ¶ 28.) Around the same time, Foster discovered that the photograph " appeared on the PR Newswire digital billboard in Times Square." ( Id. ¶ 29.) She reached out to Rodriguez to express her concern. ( Id. ¶ 28.) After a series of phone conversations made clear that Lashpia would not pay Foster any additional fees for its use of the photograph, Foster registered a copyright in the photograph on May 9, 2013. ( Id. ¶ ¶ 31, 33.) She filed this action shortly thereafter. (Dkt. No. 1, Complaint.)

II. Discussion

In their Answer to the Amended Complaint, Defendants deny (or deny knowledge of) all the allegations in the Amended Complaint, and interpose only two affirmative defenses. (Dkt. No. 27, Answer [" Answer" ].) First, they plead the affirmative defense that " [t]he Foster photograph was . . . a work for hire." ( Id., at 1.) Second, they plead the affirmative defense that " [t]he Foster photograph is a joint work." ( Id. at 2.) Foster moves for summary judgment on the ground that both defenses fail as a matter of law. In their Reply Memorandum of Law in response to Foster's motion, Defendants raise--for the first time--the affirmative defense that they had an implied license for their use of Foster's photograph. (Dkt. No. 50, Defendants' Reply Memorandum of Law, at 2 [" Defendants' Reply" ].) Foster contends that this defense has been waived and that, regardless, it fails as a matter of law. (Dkt. No. 59, Foster's Reply Memorandum of Law, at 3.)

Page 227

Defendants move for partial summary judgment on the ground that Foster is not entitled to statutory damages because the photograph was first published on December 27 or 28, 2012, on their website, www.jjeyelash.com/about-us. (Dkt. No. 34, Defendants' Memorandum of Law in Support of Their Motion for Partial Summary Judgment, at 2 [" Defendants' Memorandum" ].) They also move for partial summary judgment on the ground that there is no evidence with respect to Lee's and Rodriguez's personal liability.

A. Legal Standard

Summary judgment is appropriate when " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. A fact is material if it " might affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and a dispute is genuine if, considering the record as a whole, a rational jury could find in favor of the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The initial burden of a movant on summary judgment is to provide evidence on each element of her claim or defense illustrating her entitlement to relief. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). If the movant meets this initial burden of production, the non-moving party must then identify specific facts demonstrating a genuine issue for trial. Fed.R.Civ.P. 56(f). The court views all evidence " in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in its favor." Anderson, 447 U.S. at 250-51. A motion for summary judgment may be granted only if " no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation omitted). But the non-moving party cannot rely upon ...


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