IP Law Daily, COPYRIGHT—M.D. Tenn.: Home of celebrity record producer leads to a dispute over DMCA, (Dec 18, 2024)

By Matthew Hersh, J.D.

Claim that a celebrity website swapped one photographer’s name for another will go forward for now.

A photographer’s allegation that a celebrity news website replaced his name with a different photographer when it posted his photographs on its website adequately stated a claim for violation of the Digital Millennium Copyright Act, the federal court for Nashville has held. The court’s opinion, involving photographs of the home of a popular record producer and radio personality, found that the photographer had adequately stated a claim that met the scienter requirement of the DMCA (Grossman v. Velvet Ropes, Inc., No. 3:24-cv-01022 (M.D. Tenn. Dec. 17, 2024)).

The lawsuit was brought by Barry Grossman, a Florida-based commercial photographer specializing in interior, hospitality, portrait, product, and architecture photography. Grossman has captured images for numerous clients, including Hilton, Corcoran Group, Kohler, RTKL, Creative Mindworks, among others. He also gives webinars and private consultations on interior & architectural photography.

The target of the photographer’s lawsuit is Velvet Ropes, a company that runs a website promoting news about celebrities and information on celebrity homes. The photographer alleges that the celebrity website published photographs—taken by him—of the home of DJ Khaled, the disc jockey and record producer and former Miami radio personality. The photographer, who alleged that the website simply found the photographs on the internet “and, rather than contact Plaintiff to secure licenses, simply copied [the photographs] for its own commercial use,” brings claims of copyright infringement and violations of the Digital Millennium Copyright Act, or DMCA.

The celebrity news company moved to dismiss the DMCA complaint, leading to this opinion.

DMCA claim. The court, in a concise opinion, denied the motion to dismiss. Sections 1202(a)(1) and 1202(b)(1) of the Copyright Act, added by the DMCA, are designed to protect the integrity of copyright management information, or CMI. Section 1202(a)(1) bars any person from knowingly providing CMI that is false. Section 1202(b)(1) bars any person from intentionally removing or altering CMI. Both subsections of the Act require the proof that the person not only “knowingly” falsify or remove CMI but that they also do so “with the intent to induce, enable, facilitate, or conceal infringement.” (This is referred to, at least in some courts, as a “double scienter” requirement.) Did the photographer meet the pleading requirements of this statute? The court found that it did.

The photographer met the pleading requirements, the court found, because he alleged that the celebrity news company deliberately attributed the photographs on its website to the owner of a real estate company named Douglas Elliman. The celebrity news company did that, the lawsuit contended, even though it knew that Elliman was neither the author nor the copyright holder of the photographs. That, along with the allegation that the news website “never made any effort to identify the correct author or copyright holder of [the photographs] before displaying them on its website,” was enough to state claims under both prongs of the DMCA.

The Case is No. 3:24-cv-01022.

Judge: Campbell, Jr., W.

Attorneys: David C. Deal (The Law Office of David C. Deal, PLC) for Barry Grossman. David J. Goldman (Music City Law, PLLC) for Velvet Ropes, Inc.

Companies: Velvet Ropes, Inc.

Cases: Copyright TechnologyInternet TennesseeNews