IP Law Daily, COPYRIGHT—N.D. Ill.: Concert photograph exhibits sufficient originality to support infringement claims, (Apr 1, 2025)

By Robert Margolis, J.D.

In addressing summary judgment motion by defendants the court also addresses timeliness of claims under “separate accrual” and “discovery” rules.

Photographer David Gordon Oppenheimer’s photograph of the Steve Miller Band appearing in concert is sufficiently original to support claims that Event Ticket Sales, LLC (ETS) violated his copyright by publishing it on several ETS-owned websites without authority, the federal district court in Chicago has held. The court denied a summary judgment motion brought by ETS and its owner Guinio Volpone, who also asserted the claims are untimely and several other arguments (Oppenheimer v. Event Ticket Sales, LLC, No. 1:22-cv-02864 (N.D. Ill. Mar. 31, 2025)).

Posted photograph. Oppenheimer is a professional photographer, who took a photograph of the Steve Miller Band during a live performance in Asheville, North Carolina in August 2012 (the Photograph). He obtained copyright registration from the United States Copyright Office for a collection of images that includes the Photograph.

Oppenheimer subscribes to an image-tracking service called Pixsy that alerts him when his photographs appear on the internet. On June 1, 2019, Pixsy alerted him that the Photograph was on display at three URL addresses all owned and operated by ETS. Oppenheimer did not notice the alert from Pixsy until June 8, 2019, after which he asserts that he conducted unspecified due diligence for an unknown amount of time to determine whether ETS had authority under agreement or law to publish the Photograph. He later discovered other uses of the Photograph, as it appeared on ETS URLs on July 17, 2019, February 26, 2020, and February 1, 2023 (the Subsequent Uses).

Oppenheimer’s attorney sent a demand letter in August 2021, asserting ETS’s violation of his copyright. ETS’s counsel responded that the Photograph lacked sufficient originality to be protectable by copyright. There is no dispute that the Photograph has appeared on ETS-owned URLs, that the defendants did not receive permission to use the Photograph, and that copyright management information (CMI) is not displayed on any of the URLs displaying the Photograph. After ETS did not reply to follow-up letters from Oppenheimer’s counsel, he filed suit on May 31, 2022. His initial complaint named ETS and John Does 1-10 doing business as SecureBoxOffice.com and Box-OfficeTickets.com, the two websites on which the Photograph was displayed. Once Oppenheimer discovered that Volpone owned ETS and ETS controlled both websites, he filed the First Amended Complaint on September 21, 2022, naming Volpone instead of the John Doe defendants.

Oppenheimer brings four claims: (1) willful infringement against ETS and Volpone, (2) vicarious copyright infringement against Volpone, (3) contributory copyright infringement against Volpone, and (4) defendants removed CMI from the Photograph in violation of the Digital Millennium Copyright Act. The parties cross-moved for summary judgment.

Timeliness. Volpone sought summary judgment on the claims brought against him, asserting they were time-barred under the Copyright Act’s three-year limitations period. Two principles were dispositive of Volpone’s motion. First, the “separate accrual” rule applies to claims involving multiple alleged acts of copyright infringement, such that each infringing act starts a new limitations period. Second, under the “discovery rule,” the limitations period begins to run when the plaintiff learns, or should have as a reasonable person learned, that the defendant was violating his rights.

The record showed that Oppenheimer discovered the different uses of the Photograph at different times, with only the June 1, 2019, discovery falling outside of the three-year limitations period when calculated from the September 21, 2022 filing of the First Amended Complaint that first named Volpone as a defendant. Thus, the court granted Volpone’s motion as to that use of the Photograph, but found that claims related to the Subsequent Uses were timely.

As to the June 1, 2019, discovery, the court rejected Oppenheimer’s argument that the First Amended Complaint related back to the May 31, 2022 filing of the initial complaint because that initial complaint used John Doe defendants, and Rule 15(c)(1)(C)(ii) allows relation back when a defendant knew or should have known that the action would have been brought against him but for a mistake concerning identity. As Volpone argued, and the court agreed, suing John Doe defendants cannot constitute the requisite “mistake” under the Rule.

Alternatively, Oppenheimer asserted the claim as to the June 1, 2019, use was timely because under the discovery rule, his claim did not accrue on the date Pixsy notified him of the use. Instead, he asserted it accrued on an unspecified later date after September 21, 2019, and before he sent a demand letter in August 2021, as he was in the midst of unspecified steps to investigate the claim during that time period and discovered the claim at an unspecified date within the period. The court found several flaws in Oppenheimer’s argument. While he asserted in a declaration that he engaged in “due diligence” to determine whether the defendants’ uses were authorized, he failed to specify any details as to when he conducted the due diligence, what exactly he did, how long it took, or the dates he consulted with counsel. Further he did not bolster his declaration with any documentary evidence that might support his position that it took several months to determine the defendants’ infringement.

The separate accrual rule rendered the Subsequent Uses timely, however. Oppenheimer submitted evidence of those Uses in the form of screenshots of each URL on the day the Photograph appeared, using the Internet Archive’s Wayback Machine. While Volpone challenged that evidence as improperly authenticated, because he bears the burden of proof on a summary judgment motion asserting an affirmative defense, and Oppenheimer raised a triable issue as to the discoveries of the Subsequent Uses during the limitations period, the court denied the motion as to those Uses.

Wayback Machine. Oppenheimer moved for summary judgment on defendants’ liability for copyright infringement, relying on the Wayback Machine images, which he purported to authenticate in his declaration. However, Seventh Circuit precedent requires authentication by an Internet Archive employee who can attest to the reliability of the archived websites. The court therefore denied his motion, noting that he can have such a person testify at trial.

Originality. Though it denied Oppenheimer’s summary judgment motion for the reason just stated, it addressed other issues the parties raised. The defendants asserted that the Photograph was not protected by copyright because it lacks sufficient originality as merely a photograph of a live musical performance. But even if the subject matter is not particularly original, the requisite originality may be found in the rendition of the subject matter. Here, the court examined the Photograph and determined that Oppenheimer’s creative choices as to lighting and perspective, among other things, gave it sufficient originality.

Willfulness. Though the court could not rule at this stage as to whether defendants infringed, it did find that they acted willfully in copying the Photograph. It cited their continued use after receiving Oppenheimer’s demand letter, and what it called “brazen[]” use of the Photograph even after the lawsuit was filed. The meritless argument that the photograph lacked sufficient originality did not defeat a finding that defendants exhibit reckless disregard of Oppenheimer’s rights in using the Photograph.

Vicarious, contributory liability. The court found that if Oppenheimer can establish at trial that ETS infringed the Photograph, Volpone may be liable for vicarious and contributory infringement. The court cited the fact that he is ETS’s sole owner, controls its policies, and retains a financial interest in ticket sales generated by the URL’s on which the Photograph appeared.

The Case is No. 1:22-cv-02864.

Judge: Wood, A.

Attorneys: Ilya Zlatkin (Zlatkin Cann Entertainment) for David Gordon Oppenheimer. Matthew Burn Stephens (Stone & Johnson, Chartered) for Event Ticket Sales, LLC.

Companies: Event Ticket Sales, LLC

Cases: Copyright IllinoisNews