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Bayoh v. Afropunk Fest 2015 LLC

United States District Court, S.D. New York

January 15, 2020

MAMBU BAYOH, Plaintiff,

          For the plaintiff: Law Office of Robert L. Greener Robert L. Greener.

          For the defendants: Lewis Brisbois Bisgaard & Smith LLP Brian Pete Jonathan D. Goins



         Photographer Mambu Bayoh brought this lawsuit alleging copyright infringement by Afropunk LLC (“Afropunk”), its co-CEOs Matthew Morgan and Jocelyn Cooper, and related entities Afropunk Fest 2015 LLC and Afropunk Global Initiative LLC. Plaintiff asserts that the defendants used his photographs at music festivals during 2015 and 2016 in ways that exceeded the limited permission he had given them. Plaintiff filed copyright registrations for the photographs in 2017 and this lawsuit in 2018. Defendants have moved for summary judgment. For the following reasons, the defendants' motion is denied, except as to the related entities Afropunk Fest 2015 LLC and Afropunk Global Initiative LLC.


         The following facts are undisputed or taken in the light most favorable to the plaintiff, unless otherwise noted.

         I. Plaintiff's Relationship With Afropunk

         Afropunk organizes a series of music festivals of the same name; the first Afropunk festival was held in 2005 in Brooklyn, New York. Morgan is the founder of Afropunk and serves as its co-CEO along with Cooper, who supervises marketing and partnerships for the entity. Afropunk hires photographers to shoot its festivals and thereby obtains images to use in future promotional materials.

         In May 2015, an Afropunk employee emailed Bayoh, explaining that Afropunk was building a new website and would “love for some of [his] images to be featured.” Bayoh replied that he had “retained rights” to the images and would “require compensation for PR rights regarding [his] images.” Bayoh's reply was forwarded to Morgan, who suggested that they “jump on a call.” According to Bayoh, he gave Morgan permission to use only six photographs, and only on the website promoting the 2015 Afropunk festival.

         In August 2015, Afropunk hired Bayoh to shoot its upcoming festival in Brooklyn. An Afropunk employee sent Bayoh an agreement that would have granted Afropunk “a worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to exploit” any pictures that he took at the festival. Bayoh did not sign the agreement.[1] Bayoh did agree to participate in an “Instagram takeover, ” during which he would post images directly to Afropunk's Instagram[2] account. One of the requirements for participating in the Instagram takeover was that Bayoh submit forty to fifty images to Afropunk for use on the organization's Facebook page.

         According to Bayoh, when he arrived at the Brooklyn Afropunk festival on August 22, 2015, he observed that his artwork was used in a variety of places -- on posters, on a booklet distributed to attendees, and on staff t-shirts. Bayoh took photographs during the festival and uploaded twenty-eight such images into a Dropbox[3] folder that Afropunk had access to. According to Bayoh, he conveyed his displeasure about the extent of the use of his images at the festival to Morgan and another Afropunk employee on August 23. Afropunk paid Bayoh $1, 200 for his work at the 2015 Brooklyn festival.

         During September 2015, an Afropunk employee reached out to Bayoh about photographing the Atlanta Afropunk festival. During September 21 and 22, Bayoh and Morgan exchanged emails in which Morgan expressed concern that Afropunk had not received as many images as it expected from Bayoh. On September 23, Bayoh uploaded eighty-seven images into a Dropbox account accessible by Afropunk. On September 24, Morgan sent a text message to Bayoh:

I just asked Andrea to fill me in. She said you had agreed to flight and hotel but didn't want to give us use of the images which wouldn't work. I don't put restrictions on you and have opened up our resources and access to you[;] I don't want to feel like this is a one sided relationship. If we sold your images or made money from them other than using to boost your profile I'd understand so let me know if you think that [t]hats the case otherwise I'd like us to agree that this is our agreement and we will not go back and forth each year as your profile grows and you forget us little people.
Let me know if you want to come[;] I need to know today. Flight, hotel and $200. Same requirements as NY.

         Bayoh never responded to this message, and there is no evidence that the Atlanta Afropunk festival actually occurred.

         In the spring of 2016, Bayoh spoke to Whitney Richardson, an employee of the New York Times to whom Morgan had introduced Bayoh. After that conversation, Richardson emailed Morgan and relayed that Bayoh “was concerned on how his images were going to be used” and that “he wasn't comfortable with using his work for promo.” Morgan responded indicating that he would not be receptive to any such complaint “until the images we paid for are placed in the place they should have been placed months ago.”

         In August of 2016, Bayoh contacted Morgan and requested a photographer's pass to the 2016 Brooklyn Afropunk festival. Morgan declined to provide one, but Bayoh bought a ticket and attended the 2016 festival nonetheless. According to Bayoh, he again observed various uses of his photographs -- on posters, on directional signs, on a smartphone application for festival attendees, on Afropunk's social media, and in Afropunk's email communications.

         II. Plaintiff's Copyright Registrations

         None of Bayoh's photographs had been registered with the U.S. Copyright Office prior to the 2015 or 2016 festivals. He first filed an application for copyright registration in June 2017, seeking a group registration of thirteen photographs collectively entitled “By such and such.” During the application process, Bayoh indicated that the “By such and such” photographs were completed in 2013 and first published on April 7, 2013. But during his deposition Bayoh testified that some of the photographs were not in fact taken until 2014 or 2015. After checking the metadata on the photographs, Bayoh submitted an errata sheet to his deposition transcript indicating that the ...

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