United States District Court, S.D. New York
Attorneys for Plaintiff LIEBOWITZ LAW FIRM PLLC By: Richard
Liebowitz, Esq. Yekaterina Tsyvkin, Esq.
Attorney for Defendant LAW OFFICE OF GORDON E.R. TROY, PC By:
Gordon E.R. Troy, Esq.
W. Sweet, Judge
Tibi, LLC ("Tibi" or the "Defendant") has
moved to dismiss the complaint of plaintiff Matilde Gattoni
("Gattoni" or the "Plaintiff") pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As
set forth below, the motion is denied in part and granted in
filed her complaint (the "Complaint") against Tibi
on September 27, 2016, alleging copyright infringement under
Section 501 of the Copyright Act and removal and/or
alteration of copyright management information under Section
1202(b) of the Digital Millennium Copyright Act. The instant
motion was filed on October 27, 2016, and the motion was
marked fully submitted on December 15, 2016.
facts as set forth below are drawn from the Plaintiff's
Complaint. They are taken as true for purposes of the motion
a professional photojournalist, is the author of a photograph
of a woman in a long dress walking down an empty street near
a building with a colorful fagade in Essaouira, Morocco (the
"Photograph"). Compl. ¶¶ 5, 7, 9 &
Ex. A. On or about August 26, 2016, Gattoni posted the
Photograph on her Instagram page, @matildegattoni.
Id. ¶ 8 & Ex. B. The caption to the
Photograph included the phrase "(c) Matilde Gattoni
Photography, 2016, All rights reserved." Id.
Ex. B. The Photograph has a pending United States copyright
registration number of 1-4017865036. Id. ¶ 9
& Ex. C.
clothing corporation with a place of business at 120 Wooster
Street, New York, New York 10012, operates the Instagram page
@Tibi. Id. ¶ 6. On or about September 20, 2016,
Tibi copied the Photograph, cropped it so that only the
colorful fagade of the building remained, and posted the
image to Tibi's Instagram page. Id. ¶ 11
& Ex. D. The post was accompanied by the caption
"Palette, " an image of a camera, a colon, and a
hyperlinked reference to Gattoni's Instagram page, as
shown below. Id. Ex. D.
did not license the Photograph from Gattoni for its Instagram
social media page, nor did Tibi acquire Gattoni's
permission or consent to publish the Photograph on its
Instagram page prior to doing so. Id. ¶ 12.
The Applicable Standards
Rule 12(b) (6) standard requires that a complaint plead
sufficient facts to state a claim upon which relief can be
granted. Ashcroft v. Iqbal,556 U.S. 662, 677-78
(2009); Bell Atl. Corp. v. Twombly,550 U.S. 544,
570 (2007). On a motion to dismiss under Fed. R. Civ. P
12(b)(6), all factual allegations in the complaint are
accepted as true, and all reasonable inferences are drawn in
the plaintiffs favor. Littlejohn v. City of N.Y.,795 F.3d 297, 306 (2d Cir. 2015); Mills v. Polar
Molecular Corp.,12 F.3d 1170, 1174 (2d Cir. 1993).
However, "a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions." Twombly, 550 U.S. at
555 (quotation marks omitted). A complaint must