District court denies motion to dismiss photographer’s copyright infringement claim against rap artists and record label over use of photograph as album cover art, concluding that interpretation of limited text message license granted by photographer could not be resolved at pleading stage.
Shane Crowley, a photographer of hip-hop music and culture, filed a lawsuit against rap artists “Jim Jones” and “Harry Fraud” after defendants used a modified photograph of Jones taken by plaintiff as cover art for defendants’ 2021 album “The Fraud Department,” which defendants allegedly exploited in “derivative form on both online music services and physical albums sold on vinyl and CD.” Plaintiff had given Jones’ manager Tony Villegas permission through text message to use the photograph on the “web” and “IG” with the corresponding promise that the images would be “credited if used” according to plaintiff’s instructions. Defendants’ uses, however, did not attribute the photograph to plaintiff.
Plaintiff sued defendants for copyright infringement and contributory copyright infringement under the Copyright Act, claiming that defendants’ use of the photograph exceeded the license that he granted to Villegas through the text message exchange. Plaintiff also asserted a claim for violations of the Digital Millennium Copyright Act (DMCA), based on defendants’ addition of their own names and logo to the image and the alleged removal of plaintiff’s identifying copyright-management information. Defendants moved to dismiss all claims.
The court declined to dismiss plaintiff’s copyright claim based on the license from Crowley, finding that the text exchange did not conclusively grant the authorization defendants claimed. While concluding that Crowley granted defendants a license to exploit the photograph, the court held that the scope of the license could not be resolved at the pleading stage because a reasonable fact finder could find that defendants’ uses—including through online music platforms—exceeded the scope of the license on the “web” and “IG.” In this regard, the court observed that “Crowley’s specific reference to Instagram appears to reflect the understanding that any photograph’s exploitation on apps would be limited to Instagram.” The court also concluded that the requirement of credit communicated in the text messages could reasonably be deemed to constitute a condition of the license—rather than a breached covenant that would give rise only to a breach of contract claim—and that defendants’ failure to satisfy the alleged condition negated defendants’ license defense.
The court granted defendants’ motion to dismiss plaintiff’s DMCA claim, however. The court rejected plaintiff’s DMCA claim to the extent it was based on the alleged removal of plaintiff’s information because the complaint failed to identify the existence of any copyright-management information on the original photograph and the image provided by plaintiff did not reflect any such identifying information. The court also rejected the DMCA claim to the extent it was based on defendants’ addition of their own identifying information, based on the principle that a defendant “cannot violate the DMCA by associating its name with a derivative work that is unquestionably a distinct work, even if the derivative work infringes a copyright.” This principle applied here because, the court noted, the complaint repeatedly described the version of the photograph used by defendants as a derivative work of the original.
Summary prepared by Wook Hwang and Ava Badiee