IP Law Daily, COPYRIGHT—N.D.N.Y.: Copyright infringement lawsuit proceeds against the family-owned seafood market and restaurant, (Aug 13, 2026)

By Carolin Dennis, B.Sc., LL.B., LL.M.

The copyright owner adequately alleged a prima facie case for infringement of its photograph.

A federal district court in New York City denied a family-owned seafood market and restaurant’s motion to dismiss the amended complaint for copyright infringement by Rockefeller Photos, LLC (Rockefeller). The district court concluded that Rockefeller sufficiently pleaded the copyright infringement claim and adequately alleged that it is entitled to injunctive relief to survive the motion to dismiss (Rockefeller Photos, LLC v. Fresco Fish, Inc., No. 6:25-cv-00930-ECC-MJK (N.D.N.Y. Aug. 10, 2026)).

Background. Rockefeller sells photographs and videos to food and beverage businesses. Prepared Food Photos, Inc. f/k/a Adlife Marketing & Communications, Co., Inc. (Prepared Food Photos) is an agency that employs photographers to create food-related images and is one of Rockefeller’s customers. On December 12, 2024, Rockefeller and Prepared Food Photos executed an agreement titled an “Agency Agreement for the Licensing of Rights Managed Works,” whereby Prepared Food Photos conveyed to Rockefeller the unrestricted, exclusive right to distribute, License, and/or exploit the Works in the Territory through Agency, the exclusive use rights to the Works, the exclusive right to authorize the making of copies of the Works and/or distribute copies of the Works to the public by rights-managed license, and to authorize and control the display of those works publicly. “The Works” is alleged to be a photograph titled “HaddockFilet006, 03-16-1997” which was registered with the Register of Copyrights on October 14, 2016 and assigned Registration Number VA 2-019-921. Fresco Fish, Inc. (Fresco) owns and operates a seafood market and restaurant, and advertises through social media and its website. Rockefeller alleged that on November 4, 2024, Fresco displayed and/or published a cropped and/or edited (i.e., derivative copy) version of the Work on its website, webpage, and or social media as a means of advertising, promoting, and/or marketing its business. Rockefeller alleged that Fresco was not licensed to use or display the Work or any derivative and that Fresco never sought permission to use The Work. Rockefeller and/or Prepared Food Photos discovered Fresco’s unauthorized use/display of a derivative version of the Work in November 2024, and notified Fresco in writing of such unauthorized use. Rockefeller filed a complaint alleging a violation of the United States Copyright Act against Fresco. Fresco then filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Although an amended complaint was filed after the motion to dismiss, Fresco consented to the evaluation of the pending mention to dismiss in light of the facts alleged in the amended complaint.

Copyright infringement. Fresco argued that Rockefeller’s claim should be dismissed because the amended complaint (1) does not plausibly allege ownership of a valid copyright; (2) identifies inconsistent and conflicting images that do not correspond to the registered work; and (3) fails to demonstrate substantial similarity between the registered and accused images.”

Fresco argued that the amended complaint contained “bare legal conclusions” because there were no factual allegations or a written instrument establishing ownership. The district court noted that the plaintiff is not required to provide a “detailed factual recitation” outlining the precise “chain of title” which ultimately led to the ownership of the copyright to survive a motion to dismiss. Instead, a mere allegation of ownership may suffice even though later in the litigation Rockefeller bears the burden of proving copyright ownership. Rockefeller alleged that the “Agency Agreement for the Licensing of Rights Managed Works” conveyed to it the exclusive use rights to the Works, authorize the making of copies of the Works and/or distribute copies of the Works to the public by rights-managed license, and also conveyed the exclusive right to pursue infringement claims for violations of exclusive copyright interests, whether such infringements commenced prior to execution of this Agreement or during the term of this Agreement. Therefore, Rockefeller satisfied that standard by plausibly alleging that it owns the copyright to The Works.

Fresco attached a photograph of what it claims to be the copyrighted image to its motion to dismiss, and explained how that photograph is different than the one in the amended complaint. Rockefeller contended that the district court may not consider documents that are not attached to the amended complaint. However, the district court noted that even if it were to consider the image that Fresco purports is the registered image, it is merely an attachment to the Fresco’s motion to dismiss, and there is no registration or documentation from the Register of Copyrights to support that it is indeed the registered image. In contrast, Rockefeller alleged that the image in the amended complaint is the copywritten image, and the district court must assume that those allegations are true and correct at this stage. Therefore, the district court concluded that it would only consider the image in the amended complaint.

Next, comparing the copyrighted image with the image used by Fresco that are in the amended complaint, the district court noted that both images feature fish filets on similarly tilted brown cutting boards with a green garnish and two lemon wedges in the same place. The image Fresco used appears to magnify the filets, but taken together, the images’ “total concept and overall feel” are quite similar. Although a trier of fact ultimately may find that they are sufficiently distinct to preclude a finding of copyright infringement, the district court determined that at this juncture, it could not rule as a matter of law that they are so different as to demand dismissal of Rockefeller’s claims. Therefore, at this stage, Rockefeller sufficiently alleged the substantial similarity of the images.

Lastly, Fresco argued that Rockefeller’s allegation of willfulness is conclusory and unsupported by any factual basis. Having examined the amended complaint the district court found that Rockefeller adequately alleged, at a minimum, that Fresco acted with a reckless disregard for Rockefeller’s alleged rights in the Work at this initial stage of the litigation.

Thus, Rockefeller established the copyright infringement claim.

Injunctive and damages relief. Fresco also argued Rockefeller’s requests for injunctive and monetary relief exceed what is available under the circumstances alleged. However, liability has not been established as a matter of law in this case. The district court found that this case has only reached the motion to dismiss stage, and Rockefeller adequately alleged that it is entitled to injunctive relief to survive the motion to dismiss.

Accordingly, Fresco’s motion to dismiss was denied.

The Case is No. 6:25-cv-00930-ECC-MJK.

Judge: Coombe, E.

Attorneys: Christine R. Zaffarano (Copycat Legal PLLC) for Rockefeller Photos, LLC. Michael R. Jones (Jones Intellectual Property) for Fresco Fish, Inc.

Companies: Rockefeller Photos, LLC; Fresco Fish, Inc.

Cases: Copyright TechnologyInternet NewYorkNews