Great Bowery v. Best Little Sites
671 F.Supp.3d 1297
D. Utah
2023

Background

  • Plaintiff Great Bowery d/b/a Trunk Archive licenses photographs (exclusive licensing rights from photographer Annie Leibovitz) and sued for unauthorized use of 18 Leibovitz images found on the defendant CBM website (comicbookmovie.com).
  • CBM is a user-generated-content site; certain articles displayed the Subject Images by embedding inline links to third-party servers rather than hosting images on CBM’s servers.
  • Trunk Archive alleges CBM paid contributors to create the infringing articles and that CBM/Best had supervisory control over content; CBM denies storing the images or having actual knowledge before litigation and removed images after notice.
  • Procedural posture: Trunk Archive moved for partial judgment on the pleadings to strike two affirmative defenses (embedding and DMCA safe harbor); Defendants moved for judgment on the pleadings dismissing Trunk Archive’s infringement claim.
  • Core legal disputes: (1) whether embedding images that are hosted on third-party servers can constitute a “public display” by the embedding site (the Perfect 10 “server” test); (2) whether CBM is eligible for the DMCA §512(c) safe harbor when images were not stored on systems it controls; (3) whether Trunk Archive has standing/pleaded a public-display infringement claim given its exclusive license to license the images.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether embedding third-party-hosted images constitutes a "public display" that defeats the server test Embedding functionally displays images to users and should not be excused by a technical distinction; display right should cover embedded images Perfect 10 server test: display occurs only when the defendant stores and serves a copy; inline linking/embedding that points to third-party servers does not constitute display by the embedding site Denied Trunk Archive’s motion as to embedding — embedding defense survives at pleading stage (court finds Perfect 10 persuasive; no controlling contrary appellate authority)
Whether CBM is entitled to DMCA §512(c) safe harbor Safe harbor should not apply because embedding/linking is not merely user-directed storage and CBM facilitated the display CBM is a service provider; alleged content was made available at users’ direction and §512(c) protects user-directed stored material and access-facilitating functions Granted Trunk Archive’s motion on safe harbor — CBM cannot invoke §512(c) where images were not stored on systems controlled by CBM or at users’ direction on CBM’s systems
Whether Trunk Archive has standing and pleaded a public-display infringement claim Trunk Archive holds an exclusive right to license, which transfers the Section 106 exclusive rights (including public display) and thus has standing to sue for display infringement Trunk Archive only alleges rights to distribute/license, not the exclusive right to publicly display; Vanity Fair’s original publication undermines exclusivity Denied Defendants’ motion — Trunk Archive plausibly alleged it held exclusive rights (via exclusive licensing) including public-display rights and has standing to pursue the claim

Key Cases Cited

  • Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (server-test: a site that does not store/serve the image does not itself "display" that stored copy)
  • Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012) (applies server-test; linking/embedding by site operator not necessarily infringement)
  • Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045 (9th Cir. 2017) (DMCA §512(c) focuses on user-directed storage and public accessibility on provider’s system)
  • UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006 (9th Cir. 2013) (storage can encompass access-facilitating processes related to hosted user content)
  • Viacom Int'l v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012) (safe-harbor analysis requires that transmission/access flow from material placed on provider’s system)
  • DRK Photo v. McGraw-Hill Global Educ. Holdings, LLC, 870 F.3d 978 (9th Cir. 2017) (discusses exclusive rights and standing under the Copyright Act)
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