345 F. Supp. 3d 482
S.D. Ill.2018Background
- Michael Grecco (MGP) photographed Jeffrey Gundlach for Barron’s (published Feb. 2011); MGP retained copyright and registered the work on Feb. 20, 2011.
- Valuewalk.com (owned/operated by Jacob Wolinsky) published a Gundlach "Resource Page" that used an image identical to Grecco’s without license or attribution; Valuewalk earned advertising revenue from page views.
- Valuewalk contractors produced site content; instructions encouraged downloading images from Google and Valuewalk had no repeat-infringer policy or designated DMCA agent at the time.
- Grecco (through ImageRights) discovered Valuewalk’s use in 2015; record also shows a 2012 Valuewalk page that used the same image; Defendants contend only one continuous 2012 posting (server migration explains differences).
- MGP sued for direct, contributory, and vicarious copyright infringement and for DMCA §1202 removal of copyright management information; parties filed cross-motions for partial summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct infringement (Valuewalk) | Valuewalk reproduced and displayed an identical copy of Grecco’s photo without license. | Valuewalk contends the image differs (size/quality) and thus is not identical. | Court: Summary judgment for Plaintiff on infringement (images substantially identical), but final liability deferred because statute-of-limitations issue remains. |
| Fair use defense | N/A (Plaintiff seeks to preclude defense). | Valuewalk claims its use was transformative (biographical context) and scaled/downsampled. | Court: Fair use rejected—use was nontransformative, commercial, full-image use that harms licensing market; Plaintiff entitled to judgment on fair use defense. |
| Vicarious and contributory liability (Wolinsky) | Wolinsky had ability to supervise, assigned contractors, and financially benefited from page views. | Wolinsky denies routine editorial control/knowledge of the specific image and disputes substantial involvement. | Court: Genuine disputes of material fact exist as to Wolinsky’s control, knowledge, and financial benefit; summary judgment denied on these claims. |
| Statute of limitations (accrual/discovery) | MGP discovered 2015 posting and timely sued; 2012 posting was only uncovered later. | Defendants say the image was publicly available from 2012 and MGP should have discovered it earlier (limitation barred). | Court: Material factual dispute over whether claims accrued in 2012 or 2015; resolution required at trial—summary judgment denied on this issue. |
| DMCA §1202 (removal of CMI) | Valuewalk removed/failed to display Barron’s gutter credit identifying Grecco; removal was intentional or with knowledge. | Defendants say CMI may have been inaccessible behind Barron’s paywall and any omission was inadvertent; lack evidence of intent/knowledge. | Court: Triable issues exist as to knowledge and intent; summary judgment denied to Defendants on DMCA claims. |
| DMCA §512 safe-harbor defense | N/A (Plaintiff seeks to defeat defense). | Defendants asserted §512(c) safe harbor but offered no evidence of required threshold (service-provider status, repeat-infringer policy, designated agent). | Court: Plaintiff entitled to judgment rejecting §512 safe-harbor defense—Defendants didn’t satisfy statutory prerequisites. |
Key Cases Cited
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (U.S. 1985) (fair use—commercial, unpublished-first-publication considerations)
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (U.S. 1994) (transformative-use inquiry central to fair use analysis)
- Ringgold v. Black Entm't Television, Inc., 126 F.3d 70 (2d Cir. 1997) (substantial-similarity standard for visual works)
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (transformative use of images in biographical context)
- Petrella v. Metro‑Goldwyn‑Mayer, Inc., 572 U.S. 663 (U.S. 2014) (separate‑accrual rule for successive infringements/statute of limitations)
- Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012) (DMCA safe-harbor framework)
- Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159 (2d Cir. 1971) (standard for vicarious liability: control and direct financial interest)