United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER, DISTRICT JUDGE
Steven Hirsch, a photojournalist based in New York City,
brings this action against CBS Broadcasting, Inc. and CBS
Interactive, Inc. (together, "CBS") under the
Copyright Act, 17 U.S.C. § 101 et seq. (the
"Act"), for copyright infringement and for
alteration of copyright management information. Hirsch
alleges that CBS infringed his copyright by using a
photograph Hirsch had taken, without first obtaining a
license or his consent, in an episode of the CBS television
program 48 Hours. Hirsch also alleges that CBS
intentionally cropped Hirsch's "gutter credit"
out of the photograph, and that this act constitutes unlawful
alteration of copyright management information. CBS now moves
to dismiss Hirsch's complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). For the
reasons that follow, CBS's motion is denied.
about April 2, 2010, Hirsch, a professional photojournalist
in the business of licensing his photographs to online,
print, and television media for a fee and based in New York
City, took a photograph of a man named Justin Massler walking
outside a courthouse in Manhattan. Complaint ¶¶ 5,
8 & Ex. A (the “Photo”). Massler had gained
some notoriety because he had been accused of stalking Ivanka
Trump. Id. ¶ 8. Hirsch then licensed the Photo
to the New York Post, id. ¶ 9, which included
the Photo later that day in an online article entitled
“Ivanka's stalker ordeal featured crazed talk,
threats and bloody pix, ” id. & Ex. B (the
“Article”). Hirsch's name was
featured in a “gutter credit” on the Photo,
meaning that his name appeared in small print beneath the
caption so as to credit him as the photographer. Id.
¶ 9 & Ex. B. Hirsch owned the copyright to the
Photo, which was registered with the United States Copyright
Office. Id. ¶¶ 10-11.
seven years later, on February 25, 2017, CBS broadcast an
episode of the television show 48 Hours titled
“Stalked” on television and made the episode
available online on its website. Id. ¶¶
12-15. One segment of the Episode focused on Massler's
history of stalking behavior and the widespread news coverage
it had attracted. See Episode at 8:50-13:45. In that
segment, a CBS correspondent states that Massler had
“already made headlines once in 2010 for pursuing . . .
Ivanka Trump, ” id. at 13:35-45, and that
“it was a huge story in 2010 when Massler targeted
Trump with a barrage of ominous emails and tweets, ”
id. at 14:27-36. After that comment, the segment
features Massler's attorney, who discusses Massler's
characteristics as images of Massler flash on the screen.
Id. at 14:51-15:07. Then, as the correspondent
describes Massler's 2010 arrest, two images of Massler
appear. The first is apparently of Massler speaking in a
courtroom. Id. at 15:09-10. The second is a
screenshot of the Article, including the headline and the
Photo at issue here. Id. at 15:12-14. Additional
images of Trump and Massler are then displayed. Id.
at 15:15-30. At 15:32, a different headline from the New York
Post is flashed, this time with no accompanying image.
Id. at 15:32. At 15:45, another headline and photo
appear, again of Massler in a courtroom. The segment ends
with further on-camera discussion between the CBS
correspondent and Massler's attorney. Id. at
screenshot of the Article used in the Episode contained the
Photo as well as the New York Post headline. Compare
Id. at 15:12-14 with the Article. The
screenshot was on screen for approximately two seconds.
Id. at 15:12-14. It slowly rotated clockwise the
entire time it was on screen, starting slightly skewed to the
left and ending slightly skewed to the right. Id.
Only roughly the top half of the Photo appears in the image;
it appears to be a cropped screenshot of the Article headline
from the online presentation of the Article. Compare Id.
with the Article. Because the bottom half or so of the
Photo is cropped out, Hirsch's gutter credit was excised
and was not shown in the Episode. See Episode at
not have Hirsch's consent, or a license, to use the
Photo. Id. ¶¶ 13, 15.
filed the Complaint on March 13, 2017. Dkt. 1. On May 5,
2017, CBS filed a motion to dismiss, Dkt. 13, along with a
memorandum of law, Dkt. 14, and a declaration by counsel in
support attaching a full copy of the Episode, Dkt. 15, Ex. 1.
On May 26, 2017, Hirsch filed a brief in opposition. Dkt. 19.
On June 2, 2017, CBS filed a reply, Dkt. 20, and a
declaration by counsel in support, Dkt. 21. On June 14, 2017,
the Court held an initial conference in this case.
Applicable Legal Standards
survive a motion to dismiss under Rule 12(b)(6), a complaint
must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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, 556 U.S. at 678. “Where a complaint
pleads facts that are ‘merely consistent with' a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557).
considering a motion to dismiss, a district court must
“accept all factual claims in the complaint as true,
and draw all reasonable inferences in the plaintiff's
favor.” Lotes Co. v. Hon Hai Precision Indus.
Co., 753 F.3d 395, 403 (2d Cir. 2014) (quoting
Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d
106, 108 (2d Cir. 2010) (internal quotation marks omitted)).
However, this tenet is “inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. “[R]ather, the
complaint's [f]actual allegations must be enough
to raise a right to relief above the speculative level,
i.e., enough to make the claim plausible.”
Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d
Cir. 2010) (quoting Twombly, 550 U.S. at 555, 570)
(internal quotation marks omitted) (emphasis in Arista
Records). A complaint is properly dismissed where, as a
matter of law, “the allegations in [the] complaint,
however true, could not raise a claim of entitlement to
relief.” Twombly, 550 U.S. at 558.
brings two claims under the Act: for (1) copyright
infringement under 17 U.S.C. §§ 106, 501, and (2)
removal of copyright management information in violation of
17 U.S.C. § 1202. Complaint ¶¶ 16-32. As
relief, Hirsch seeks (1) a judgment of infringement; (2)
actual damages or statutory damages of up to $150, 000 per
copyrighted work as authorized by 17 U.S.C. § 504; (3)
an accounting of CBS's unlawful profits; and (4)
attorneys' fees. Id. at 6-7 (“Prayer for
moves to dismiss on the grounds that (1) its use of
Hirsch's work was de minimis such that, as a
matter of law, it cannot support a violation of the Act (2)
its use was a fair use; and (3) Hirsch has failed to
plausibly allege a claim for removal of copyright management
information. For the following reasons, the Court denies
Copyright Infringement-De Minimis
first argues that its use of the Photo was de
minimis such that, as a matter of law, it cannot support