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Hirsch v. CBS Broadcasting Inc.

United States District Court, S.D. New York

August 4, 2017


          OPINION & ORDER


         Plaintiff 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.

         I. Background

         A. Factual Background[1]

         On or 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.

         Nearly 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 15:45-16:02.

         The 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 15:12-14.

         CBS did not have Hirsch's consent, or a license, to use the Photo. Id. ¶¶ 13, 15.

         B. Procedural History

         Hirsch 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.

         II. Applicable Legal Standards

         To 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).

         In 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.

         III. Discussion

         Hirsch 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 Relief”).

         CBS 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 CBS's motion.

         A. Copyright Infringement-De Minimis

         CBS first argues that its use of the Photo was de minimis such that, as a matter of law, it cannot support ...

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