District court dismisses amended claims against Meta over Facebook thumbnails of plaintiff photographer’s images, finding plaintiff failed to sufficiently plead threshold requirements and essential elements of claims under Copyright, Lanham and Digital Millennium Copyright acts.
After his initial putative class action was dismissed with leave to amend (read our summary of the district court’s decision here), photographer Don Logan filed a second amended complaint against Meta Platforms Inc., alleging direct copyright infringement, secondary infringement, Lanham Act claims and claims under the Digital Millennium Copyright Act (DMCA). Meta moved to dismiss all but the direct infringement claims, and the court agreed, dismissing the claims without leave to amend this time.
Logan specializes in landscape photos, which he regularly uploads to Wikimedia Commons, where the images can be freely accessed subject to a Creative Commons license. The terms of the license permit reproduction, public display and distribution of the images, subject to certain restrictions, including author attribution. The factual allegations in the second amended complaint concern two specific Facebook features: the “check in” feature and Facebook’s use of “prefetching.” Check-in allows Facebook users to “check in” to a location. Once a user does so, the user’s GPS data is transmitted to Facebook, and relevant, location-specific photos are then shown to the user. Facebook utilizes prefetching to pre-download certain mobile content and mobile ads before a user taps a link, so that once the user does tap the link, the content will load more quickly. According to Meta’s documentation, these “images” are not cached. Logan alleges that the check-in feature resulted in thousands of instances of misappropriation based on Facebook displaying thumbnails of Logan’s photographs, and that his photographs were being transferred to users’ devices through Facebook’s prefetching functionality.
While Meta did not challenge Logan’s direct infringement claims in its motion, it did move to dismiss Logan’s secondary liability claims. In considering Meta’s motion to dismiss, the court summarized Logan’s factual allegations as Facebook storing Logan’s photographs on its servers and altering them to appear as thumbnails on a location page. More specifically, Logan alleged that when a Facebook user checks in at a location, Facebook transmits the altered version of one of Logan’s photographs to the user’s device through prefetching, and that this process would allow Facebook users to use or embed Logan’s photographs onto their own sites, pages or servers.
Logan relied on Meta’s Business Help Center documentation to explain prefetching. The court noted, however, that this document stated that prefetching applied to mobile ads, not content (such as Logan’s photographs) that was present on Facebook, and that the document specifically states that images are not cached on a user’s device. The Help Center document also does not concern or discuss Facebook’s check-in feature, leading the court to determine that, despite Logan’s allegations, the systems of check-in and prefetching are not related. The court dismissed the secondary liability claim, finding that Logan had failed to plead direct infringement by a third party, which is an underlying requirement for secondary infringement. In particular, the court found that Logan did not “marshal any facts to render any such connection between ‘check-in’ and ‘prefetching’ plausible,” dismissed his allegations as merely conclusory, and noted that conclusory allegations are not deemed to be true in connection with determination of a motion to dismiss.
In support of his Lanham Act claim, Logan alleged that Meta’s alteration of the content of his photographs by resizing or reconfiguring them to appear as thumbnails was actionable misrepresentation. The court stated that “this is the first case[, as far as the Court is aware,] to address a Lanham Act claim regarding resizing or reconfiguring a photograph to appear as a thumbnail on a Facebook page.” The court dismissed this claim as well, finding that Logan failed to plead any facts to support the required elements of such a claim, namely that Facebook users are likely to be deceived by a Facebook thumbnail of Logan’s photographs, or that a deception, should it occur, would be material, in the sense that it would be likely to influence purchasing decisions.
According to the court, cropping and resizing photos into thumbnails is an inherent part of Facebook of which Facebook users are generally aware because, among other things, they see this happens to their own profile pictures. Logan failed to plausibly allege that even if the user saw the thumbnail version of one of Logan’s photographs, the user would–instead of obtaining high-quality images via Logan’s Wikimedia Commons page–download and share the thumbnail version of the photograph, which users know are of lower quality and resolution; thus, Logan failed to plead the materiality threshold. While Logan argued that the modification of his photographs into thumbnails rendered them into something with totally different characteristics, the court found that this was an attempt to shoehorn a copyright claim into the trademark statute and dismissed the claim without leave to amend.
Finally, Logan alleged that Meta removed or altered Logan’s copyright management information (CMI), in violation of Sec. 1202(b) of the DMCA, by cropping Logan’s signature out of his photographs when converting them to thumbnails. The court dismissed this claim as well, again without leave to amend, finding that Section 1202(b) requires that the CMI be removed intentionally. Every photo, when cropped into a thumbnail on Facebook, is edited to the same size, meaning that any information outside the space may be excluded from the thumbnail. The court acknowledged that there might be a different result if Facebook removed the CMI but left the remainder of the photo intact. However, here, the CMI was outside the boundaries of the cropped portion of the image. Because all photos on Facebook were treated in the same manner, the cropping of Logan’s CMI was accidental and did not support intentionality.
Summary prepared by Melanie Howard and Alex Inman