IP Law Daily, COPYRIGHT—S.D.N.Y.: Photographer can proceed with infringement claims over aerial image of Apple HQ, (Jan 8, 2025)

By Kevin M. Finson

Photographer plausibly alleged the requisite ownership of a creative work, registration, defendant’s use by posting on a website, and removal of copyright management information by cropping out a watermark.

A website operator was not entitled to dismissal of copyright infringement claims brought against it by a photographer, the U.S. District Court in White Plains, New York, has held. The photographer plausibly alleged his ownership and registration of the work—an aerial photograph of Apple’s headquarters—as well as the website’s use thereof (Davidson v. 925 LLC, No. 7:23-cv-09891-NSR (S.D.N.Y. Jan. 6, 2025)).

Bruce Cameron Davidson was a photographer and the owner of an aerial shot of the Apple, Inc. headquarters in Silicon Valley, California. The photograph was entitled “MM8746_180921_4510” and was registered with the Register of Copyrights as part of a group registration on February 23, 2019. Davidson brought suit for infringement against 925, LLC, an operator of several websites which see close to three million page views per day, alleging that 925 copied and distributed his work on its website in order to advertise its products and services. Davidson also alleged that 925 removed copyright management information (CMI) from the work in violation of the Digital Millennium Copyright Act (DMCA). 925 moved to dismiss.

Copyright infringement. 925 argued that the work lacked the creativity necessary to be protectable, being merely a photograph of a building seen from the sky at night. The court held that the controlling caselaw indicated that unique factors chosen by photographers, such as posing, light, shade, camera, and lens selection, all showed at least the very low bar of creativity necessary for copyright protection. The court also held that Davidson had properly pleaded that the work was registered, and that arguments of fair use raised by 925 were premature at the pleading stage.

Removal of CMI. Davidson had alleged that 925 displayed the photograph on its website without attribution and with metadata and copyright notices removed. The court found that this was sufficient to allege a violation of the DMCA, and that Davidson had in fact gone further by attaching to his complaint a copy of the work which he alleged was as displayed on 925’s website, which had been cropped precisely to remove a watermark which read, “© CAMERON DAVIDSON.”

The court denied the motion to dismiss.

The case is No. 7:23-cv-09891-NSR.

Judge: Román, N.

Attorneys: Rachel Kaminetzky (Sriplaw, P.A.) for Bruce Cameron Davidson.

Companies: 925 LLC

Cases: Copyright TechnologyInternet NewYorkNews