Levine v. Elliot Landy & Landyvision, Inc.
832 F. Supp. 2d 176
N.D.N.Y.2011Background
- Levine, a Woodstock photographer, sued Landy and Landyvision for multiple copyright and related claims arising from distribution and publication of his Woodstock photographs.
- Landy and Landyvision allegedly licensed and published Levine’s photos since 1979 under an oral agreement, with Landy possessing the original slides.
- A 1994 Landyvision book used Levine’s photographs; in 2008 Fetjaine published a French reprint of that book with Landy’s authorization, allegedly infringing in the United States and abroad.
- Levine alleges additional unauthorized uses in 2009 books, websites, and third-party publications, with misattribution and failure to remit payments.
- The complaint distinguishes Group A photographs (alleged infringements) from Group B photographs (authorized uses with unpaid royalties), guiding preemption and remedies analysis.
- Defendants moved to dismiss under Rule 12(b)(6) certain copyright, Lanham Act, and state-law claims as preempted or improper, while preserving other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fetjaine France claims fall within extraterritorial copyright limits. | Levine asserts United States acts occurred in US, supporting §106 predicate acts. | Landy contends foreign publication generally not actionable absent US predicate acts. | Claims survive dismissal; potential US infringement predicates exist. |
| Whether unregistered copyrights bar Counts 5,11-17. | Registration obtained after filing preserves action for those works. | Unregistered works must be dismissed absent timely preregistration. | Counts may proceed; registrations completed render claims viable. |
| Whether plaintiff may recover statutory damages and attorneys’ fees for certain counts. | Registrations before infringement permit statutory relief for eligible works. | §412 timing bars relief for pre-registration infringements. | Counts 1,3,5,6,8,9,10,13,15,17 may proceed; Counts 2,7,9,11,12,16 denied (note 9 listed; text inconsistencies aside). |
| Whether counts involving third-party infringement (Counts 2,7,12) survive as direct/contributory claims. | Defendants contributed to or facilitated infringement by third parties. | Claims against non-parties should be dismissed for lack of direct infringement by defendants. | Counts 2, 7, and 12 survive as contributory infringement claims. |
| Whether non-copyright claims are preempted and the scope of the accounting remedy. | Some non-copyright claims fall outside general preemption and seek an accounting. | Preemption bars most non-copyright claims and accompanying accounting. | Group A unjust enrichment, common-law unfair competition, and NY GBL 349 claims are preempted; Group B unjust enrichment and accounting remain viable where based on the agency/royalty framework. |
Key Cases Cited
- Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67 (2d Cir.1988) (extraterritorial copyright limits and predicate acts in US)
- Netzer v. Continuity Graphic Assocs., Inc., 963 F. Supp. 1308 (S.D.N.Y.1997) (unjust enrichment preemption when core rights are copyright-based)
- Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458 (S.D.N.Y.1999) (unjust enrichment preemption in copyright context; Briarpatch analogue)
- Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir.2004) (unjust enrichment elements and preemption framework)
- National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir.1997) (extra-element test for preemption)
- Waldman Publishing Corp. v. Gary Friedrich Enters., Inc., 43 F.3d 701 (2d Cir.1994) ( Lanham Act scope; misattribution and origin of authorship in written works)
- Gary Friedrich Enters. v. Marvel Entm’t, Inc., 718 F. Supp. 2d 261 (S.D.N.Y.2010) (reverse passing off; preemption context for unfair competition)
- Stadt v. Fox News Network LLC, 719 F. Supp. 2d 312 (S.D.N.Y.2010) (section 349 elements and consumer harm)