United States District Court, S.D. New York
the plaintiff: Law Office of Robert L. Greener Robert L.
the defendants: Lewis Brisbois Bisgaard & Smith LLP Brian
Pete Jonathan D. Goins
OPINION AND ORDER
COTE, DISTRICT JUDGE.
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
following facts are undisputed or taken in the light most
favorable to the plaintiff, unless otherwise noted.
Plaintiff's Relationship With 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.
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
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. Bayoh did agree to participate in an
“Instagram takeover, ” during which he would post
images directly to Afropunk's Instagram 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.
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 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.
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.
never responded to this message, and there is no evidence
that the Atlanta Afropunk festival actually occurred.
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.”
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.
Plaintiff's Copyright Registrations
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 ...