Gattoni v. Tibi, LLC
254 F. Supp. 3d 659
S.D.N.Y.2017Background
- Plaintiff Matilde Gattoni is a photojournalist who posted a photograph to her Instagram account that included a copyright notice and has a pending U.S. copyright application.
- Defendant Tibi, LLC reposted a cropped version of the photograph on its Instagram account with a short caption and a hyperlinked tag to Gattoni’s Instagram page.
- Gattoni filed suit alleging (1) copyright infringement under 17 U.S.C. § 501 and (2) removal/alteration of copyright management information (CMI) under 17 U.S.C. § 1202(b) of the DMCA.
- The Complaint pleads ownership and identifies the work, but only alleges a pending copyright registration (application), not an issued certificate.
- The court treated factual allegations as true for a Rule 12(b)(6) motion and considered whether pre-suit registration is pleaded and whether CMI removal was adequately alleged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pending copyright application satisfies § 411(a) to state an infringement claim | Gattoni alleges a pending registration/application and contends that suffices to support infringement claim | Tibi argues a certificate (not a mere application) is required under § 411(a) and the claim should be dismissed | Dismissed copyright claim without prejudice because plaintiff alleged only a pending application, not an issued registration; leave to amend within 60 days |
| Whether omission/alteration of CMI on repost states a claim under 17 U.S.C. § 1202(b) | Gattoni alleges Tibi removed CMI (the copyright notice identifying her) and acted intentionally or with knowledge | Tibi contends allegations are conclusory and that tagging/credit undermines any inference of intentional removal | DMCA CMI claim survives Rule 12(b)(6); court finds allegations plus exhibits (original notice vs. Tibi’s post) sufficiently plead existence and intentional removal/alteration of CMI |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: plausibility required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard; more than labels and conclusions)
- Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (registration is an element of infringement claims, not jurisdictional)
- Littlejohn v. City of New York, 795 F.3d 297 (accept factual allegations and draw inferences on motion to dismiss)
- Mills v. Polar Molecular Corp., 12 F.3d 1170 (pleading standards at motion to dismiss)
- Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606 F.3d 612 (post-Reed: registration is an element of a copyright claim)
- In re Literary Works in Electronic Databases Copyright Litig., 509 F.3d 116 (pre-Reed view on registration and jurisdiction)
- Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (CMI examples and DMCA §1202(b) scope)
- In re DDAVP Direct Purchaser Antitrust Litig., 585 F.3d 677 (courts should be lenient on scienter allegations at pleading stage)
- BanxCorp v. Costco Wholesale Corp., 723 F. Supp. 2d 596 (elements for § 1202(b) claim)