Sid Avery & Assocs., Inc. v. Pixels.com, LLC
| Decision Date | 18 August 2020 |
| Docket Number | Case No.: CV 18-10232-CJC(JEMx) |
| Citation | 479 F.Supp.3d 859 |
| Parties | SID AVERY AND ASSOCIATES, INC. d/b/a MPTV Images, Plaintiff, v. PIXELS.COM, LLC, Defendant. |
| Court | U.S. District Court — Central District of California |
Joel B. Rothman, Pro Hac Vice, Sriplaw, Boca Raton, FL, Jonah Adam Grossbardt, Sriplaw PA, Los Angeles, CA, for Plaintiff.
Bruce B. Paul, Pro Hac Vice, McBrayer PLLC, Mari-Elise Paul, Mari-Elise Paul, Pro Hac Vice, Stites and Harbison PLLC, Louisville, KY, Jay A Woollacott, Woollacott LLP, Los Angeles, CA, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Dkt. 94]
This is an action for copyright infringement regarding six vintage photographs that were posted to "print-on-demand" websites operated by Defendant Pixels.com, LLC ("Pixels"). (Dkt. 44 [First Amended Complaint, hereinafter "FAC"].) Plaintiff Sid Avery and Associates, Inc. d/b/a MPTV Images owns copyrights to the images and asserts claims for copyright infringement, as well as claims for removal and falsification of copyright management information. (Id. ) Before the Court is Pixels' motion for summary judgment. (Dkt. 95 [Amended Notice and Motion]; Dkt. 94-1 [Memorandum in Support, hereinafter "Mot."].) Pixels argues there is no genuine dispute of material fact regarding its direct liability and that it is shielded from vicarious liability under the Digital Millennium Copyright Act's ("DMCA") safe harbor provision, 17 U.S.C. § 512(c). For the following reasons, Pixels' motion is GRANTED IN PART and DENIED IN PART.1
Pixels operates several "print-on-demand" websites, including FineArtAmerica.com and DesignerPrints.com ("the Websites"). (Dkt. 101-27 [Plaintiff's Statement of Genuine Disputes, hereinafter "SGD"] ¶ 1.1; Dkt. 101-15 [] at 20–22.)2 Unlike other platforms, Pixels does not simply allow users to print their own images. Instead, it offers consumers the opportunity to purchase various products—including framed wall art, throw pillows, beach towels, phone cases, and tote bags—printed with images uploaded by its "contributors." (SGD ¶¶ 1.1–1.10; Broihier Depo. at 110–112.) Pixels denies that it "sells" these goods. (See, e.g. , CSF at 1.) Instead, it describes itself as a "platform" and "marketplace" for artists, photographers, and image libraries to sell their art to consumers. (See SGD ¶ 1.1.) Semantics aside, the parties do not dispute the basic elements of Pixels' business model.
Pixels does not select or upload images to its Websites. (Id. ¶¶ 1.2–1.3.) Instead, its contributors decide what to upload. (Id. ) To do so, they must agree to Pixels' Contributors Terms of Use and guarantee that they are not infringing on third party copyrights. (Id. ¶¶ 1.4–1.5.) After uploading, contributors can tag their images with keywords and select products their images will be sold on. (Id. ¶ 1.7; Broihier Depo. at 56.) They can also choose to add digital watermarks—with the name of the Website—to the versions of their images that will be displayed online. (Broihier Decl. ¶ 13.) Pixels sets the base price for each product, and the contributors set the markup that they will earn for each sale. (Broihier Depo. at 55–57; CSF at 8.) Pixels contracts with third-party vendors, or "fulfillment centers," that manufacture and ship the goods. (SGD ¶¶ 1.8–1.10; Broihier Depo. at 138.) It splits the base price with its vendors. (Broihier Depo. at 55–57.)
Pixels facilitates, processes, and executes the sales. On its Websites, consumers can search for images by keyword, review the available products for each image, place products in their virtual "shopping cart," and make purchases. (Id. at 93–95, 110–16, 162–63.) Pixels sends invoices to consumers, receives payments, transmits the orders to the vendors for production and shipping, pays the markup price to the contributor, pays a portion of the base price to its vendors, and retains the profit. (Id. ) When an order is submitted, a Pixels employee confirms that the image will not appear blurry on the purchased product and cancels and refunds the order if the image quality is not suitable for printing. Otherwise, Pixels maintains that its system is "fully automated." (See Broihier Decl. ¶ 19.) Pixels has a designated agent for DMCA takedown notifications and systems in place to remove infringing images and disable accounts of repeat infringers. (Broihier Decl. ¶¶ 21–23.)
The six images at issue in this case are photographs taken in the 1950's, ‘60s, and ‘70s by Sid Avery, a well-known Hollywood photographer. (CSF at 20–21.)3 They feature iconic celebrities: Frank Sinatra, James Dean, Steve McQueen, and the cast of the 1960 film Ocean's Eleven. (Id. ) According to Plaintiff, "[l]imited edition prints of the images ... can sell for thousands of dollars each, and [Plaintiff] licenses the images on a rights managed basis to the media and others." In 1976, 2004, and 2014, representatives for Plaintiff applied for and received copyright registrations for the six images—Registration Numbers VAu 637-771, VAu 1-179-990, Ju 14776, and Ju 14671. (CSF at 20–22.) The copyrights are now held by Plaintiff, a company founded by Sid Avery. (See FAC ¶¶ 2, 15.) Pixels claims that three of these four copyrights are invalid and unenforceable because the claimants submitted false information to the Copyright Office. (See SGD at 41–58.)
In the FAC, Plaintiff alleges that Pixels copied and distributed the six images without permission. (FAC ¶¶ 18–21.) Pixels concedes that it has sold at least one product displaying one of the images. (Broihier Depo at 152; Broihier Decl. ¶ 34.)4 Plaintiff filed this action on December 10, 2018. (Dkt. 1.) It did not submit a DMCA notice to Pixels regarding any of the images at issue. (SGD ¶ 2.b.1.) Upon receiving the original Complaint and FAC, Pixels responded as if it had received a DMCA-compliant notice and removed the images containing the alleged infringement from the Websites. (Id. ¶ 2.b.2.) In the operative FAC, Plaintiff asserts three claims for (1) direct and vicarious copyright infringement, 17 U.S.C. § 501, (2) removal of copyright management information, 17 U.S.C. § 1202, and (3) falsification of copyright management information, 17 U.S.C. § 1202(a).
The Court may grant summary judgment on "each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Fed. R. Civ. P. 56(a). Summary judgment is proper where the pleadings, the discovery and disclosure materials on file, and any affidavits show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex , 477 U.S. at 325, 106 S.Ct. 2548. A factual issue is "genuine" when there is sufficient evidence such that a reasonable trier of fact could resolve the issue in the nonmovant's favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" when its resolution might affect the outcome of the suit under the governing law, and is determined by looking to the substantive law. Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 249, 106 S.Ct. 2505.
Where the movant will bear the burden of proof on an issue at trial, the movant "must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir. 2007). In contrast, where the nonmovant will have the burden of proof on an issue at trial, the moving party may discharge its burden of production by either (1) negating an essential element of the opposing party's claim or defense, Adickes v. S.H. Kress & Co. , 398 U.S. 144, 158–60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), or (2) showing that there is an absence of evidence to support the nonmoving party's case, Celotex , 477 U.S. at 325, 106 S.Ct. 2548. Once this burden is met, the party resisting the motion must set forth, by affidavit or as otherwise provided under Rule 56, "specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 256, 106 S.Ct. 2505. A party opposing summary judgment must support its assertion that a material fact is genuinely disputed by (1) citing to materials in the record, (2) showing the moving party's materials are inadequate to establish an absence of genuine dispute, or (3) showing that the moving party lacks admissible evidence to support its factual position. Fed. R. Civ. P. 56(c)(1)(A)–(B).
In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the nonmoving party, and draw all justifiable inferences in its favor. Id. ; United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 630–31 (9th Cir. 1987). The court does not make credibility determinations, nor does it weigh conflicting evidence. Eastman Kodak Co. v. Image Tech. Servs., Inc. , 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). But conclusory and speculative testimony in affidavits and moving papers is insufficient to raise triable issues of fact and defeat summary judgment. Thornhill Publ'g Co. v. GTE Corp. , 594 F.2d 730, 738 (9th Cir. 1979).
Pixels seeks summary judgment based on Plaintiff's lack of evidence and its own affirmative defense.5 First, Pixels argues...
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