IP Law Daily, COPYRIGHT—S.D.N.Y.: Photographer waited too long to sue online publisher over use of Notorious B.I.G. photo, (Jan 11, 2023)

By Kevin M. Finson, J.D.

The photographer’s infringement and DMCA claims were dismissed as time-barred or based on conclusory allegations.

A photographer failed to state any claims of infringement related to an online publisher’s alleged unauthorized use of her photograph of prominent rapper the Notorious B.I.G., the federal district court in New York City has held. The photographer’s direct infringement claim, filed six years after the allegedly infringing use, was time-barred as she was at least on inquiry notice and her indirect infringement and Digital Millennium Copyright Act claims failed because they consisted of only conclusory statements without supporting factual allegations (Lixenberg v. Complex Media, Inc., January 10, 2023, Abrams, R.).

Dana Ruth Lixenberg was a photographer who was the creator and owner of a photograph of rap musician the Notorious B.I.G. The photograph was registered with the United States 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.’” In January of 2022, Lixenberg filed suit against Complex for copyright infringement, vicarious and/or contributory copyright infringement, and violation of the Digital Millennium Copyright Act (DMCA). Complex moved to dismiss.

Direct infringement. Complex argued that the case was time-barred because it was filed nearly six years after the allegedly infringing act. Lixenberg argued that she had no reason to know of the infringing use until years after it occurred, so the statute of limitations should be tolled under the discovery rule. The court held that because Lixenberg was “a seasoned litigator” who routinely filed suit to enforce her copyrights in the courts and because she offered no evidence or explanation for her failure to file earlier, she was at least on inquiry notice after the online publication of her photograph. The direct infringement claim was time-barred.

Vicarious infringement. Complex argued that the vicarious and contributory infringement claims should be dismissed because they were based on conclusory allegations. Specifically, Lixenberg failed to identify any third-party infringers whose infringement Complex could have vicariously profited from or contributed to. The court held that Lixenberg’s complaint contained only “threadbare recitals” of the elements of each cause of action and therefore failed to state a claim.

DMCA violations. Lixenberg alleged that Complex had violated the DMCA by both removing her copyright management information (CMI) from the photograph and adding false CMI to it before distributing it. However, the court found that this was again a “threadbare recital” of the elements of the cause of action and noted that the complaint lacked any specific allegations that Lixenberg had ever published the photograph with any CMI on it to begin with, so there was no specific allegation that there was CMI for Complex to have removed. The CMI which Lixenberg claimed Complex had added to her photograph, a logo and byline, were not associated with the photograph and only reflected claimed ownership of the article itself, not the photograph. The complaint failed to state a claim under the DMCA.

The court granted Complex’s motion to dismiss and allowed Lixenberg leave to amend.

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

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

Companies: Complex Media, Inc.

Cases: Copyright TechnologyInternet NewYorkNews