IP Law Daily, COPYRIGHT—S.D.N.Y.: Media company motion to dismiss photographer’s claims denied, (Oct 30, 2025)

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

The motion to dismiss the photographer’s copyright infringement and DMCA claims was denied with respect to the use and distribution of her photograph by a media company.

The federal district court in New York City denied a media company’s motion to dismiss a photographer’s second amended complaint for copyright infringement and violations of the Digital Millenium Copyright Act (DMCA) for unauthorized use of a photograph of prominent rapper the Notorious B.I.G. The court concluded that the photographer’s copyright infringement claim was not time-barred and the DMCA claims were sufficiently pleaded (Lixenberg v. Complex Media, Inc., No. 1:22-cv-00354-RA (S.D.N.Y. Oct. 29, 2025)).

Background. Dana Ruth Lixenberg was a photographer who was the creator and owner of a photograph of rap musician known as the Notorious B.I.G. The photograph was registered with the U.S. Copyright Office. Complex Media, Inc. (Complex) was the owner and operator of a website which allegedly published the photograph without Lixenberg’s permission in an article posted on May 21, 2016, entitled “Biggie’s Birthday is Now Officially ‘The Notorious B.I.G. Day in Brooklyn.’”

Lixenberg commenced an action against Complex and 10 John Does (collectively, defendants) for alleged copyright infringement and violations of the DMCA relating to their purported use of her photograph of Notorious B.I.G. in January 13, 2022. She filed a first amended complaint in March 2022, asserting claims for copyright infringement, vicarious and/or contributory copyright infringement, and violations of the DMCA. On January 10, 2023, the district court granted Complex’s motion to dismiss the first amended complaint. However, the district court provided Lixenberg the opportunity to amend. She did so on February 9, 2023, bringing claims for copyright infringement and violations of the DMCA only. Complex Media again moved to dismiss.

In November 2023, the district court sua sponte stayed the action pending resolution of Michael Grecco Productions, Inc. v. RADesign, Inc., No. 21-CV-8381, 2023 WL 4106162 (S.D.N.Y. June 20, 2023), a factually similar case then on appeal in the Second Circuit. Following the appellate court’s 2024 decision holding that “there is no ‘sophisticated plaintiff’ exception to the discovery rule” in a copyright action, the district court lifted the stay of the instant action. Because the Second Circuit decision bore directly on the parties’ arguments about the application of the so-called “sophisticated plaintiff” or “seasoned litigator” exception to the discovery rule, the district court denied the motion to dismiss without prejudice. Complex then filed an amended motion to dismiss the second amended complaint.

Copyright infringement. Complex raised two arguments in favor of dismissal the copyright infringement claim: (1) that Lixenberg’s claim is time-barred because she had “inquiry notice” of the purported infringement more than three years before filing suit, and (2) that the Supreme Court’s decision in Rotkiske v. Klemm, 589 U.S. 8 (2019), as well as Sohm v. Scholastic Inc., 959 F.3d 39 (2nd Cir. 2020), rendered the discovery rule inapplicable in copyright infringement cases absent a claim of fraud, and there is no claim of fraud here. The district court noted that the discovery rule does not impose on copyright holders a general duty to police the internet to uncover infringement. Accordingly, at this stage of the litigation, the district court rejected Complex’s argument that Lixenberg’s copyright claim is time-barred because she had “inquiry notice” of the purported infringement more than three years before filing suit.

In Grecco, the Second Circuit explained that “the discovery rule determines when an infringement claim accrues under the Copyright Act” and applied this “well-established” rule. Considering Complex’s Rotkiske argument again in light of the circuit’s decision in Grecco, the district court concluded that the discovery rule remains controlling. Accordingly, Complex’s motion to dismiss the copyright infringement claim was denied.

Violations of the DMCA. In her second amended complaint, Lixenberg added new allegations, including the provision of “nonexclusive exemplars” of the Photograph published with copyright management information (CMI) properly attributing authorship to her, and allegations that Complex’s branding and byline signaled authorship of the entire article, particularly in the absence of other attribution information for the Photograph. Complex asked the district court to dismiss Lixenberg’s DMCA claims for removal of her CMI and distribution of false CMI, in violation of §§ 1202(b) and (a), respectively.

Having examined Lixenberg’s additional allegations and the parties’ arguments, the district court found that Lixenberg plausibly alleged the existence of CMI on the Photograph and also plausibly alleged Complex’s actual knowledge of the removal and constructive knowledge that the removal concealed their own infringement. Further, Lixenberg’s allegations as to the defendants’ infringing conduct support inferences of their actual and constructive knowledge. Lixenberg also submitted a screenshot of Complex’s publication of her Photograph without any CMI attributing authorship to her, as well as exemplars demonstrating publication of the Photograph with such CMI. The district court noted that she also plausibly alleged constructive knowledge that distribution of the Photograph without her CMI would conceal the defendants’ own infringement. Accordingly, Complex’s motion to dismiss the § 1202(b) claim was denied.

The district court also denied the motion to dismiss Lixenberg’s § 1202(a) claim. The district court found that Lixenberg adequately alleged that Complex’s logo and byline constituted false CMI. Further, the district court noted that Lixenberg plausibly alleged that Complex Media’s logo and byline are “accessible in conjunction with” the Photograph. This provides support for Lixenberg’s allegation that Complex’s logo and byline “could be construed as false CMI,” which is sufficient to survive a motion to dismiss. Thus, Lixenberg plausibly alleged that Complex provided false copyright information, the first requirement for a § 1202(a) claim. The district court found that Lixenberg also plausibly alleged scienter. Additionally, Lixenberg’s plausible allegations that the defendants removed her CMI and added Complex’s further supported the inference that the defendants knew the Complex CMI was false and intended to facilitate infringement through the false claim of copyright ownership of the Photograph.

Dismissal of the Does. The district court noted that although more than three years have passed since the case was filed, Lixenberg did not have any opportunity to discover the identities of the Doe defendants. Thus, Complex’s motion to dismiss the Doe defendants was denied.

The Case is No. 1:22-cv-00354-RA.

Judge: Abrams, R.

Attorneys: Laura Zaharia Marion (Doniger/Burroughs) for Dana Ruth Lixenberg. Nancy Ann Del Pizzo (Rivkin Radler, LLP) for Complex Media, Inc.

Companies: Complex Media, Inc.

Cases: Copyright TechnologyInternet NewYorkNews