Alberghetti v. Corbis Corp.

• Decision Date: 29 April 2010
• Docket Number: No. CV 09-5735 SVW (CWX).,CV 09-5735 SVW (CWX).
• Court: U.S. District Court — Central District of California
• Parties: Anna Maria ALBERGHETTI, Bonnie Pointer, and Judy Tenuta, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs,v.CORBIS CORPORATION, Defendant.

713 F.Supp.2d 971

Anna Maria ALBERGHETTI, Bonnie Pointer, and Judy Tenuta, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs,v.CORBIS CORPORATION, Defendant.

No. CV 09-5735 SVW (CWX).

United States District Court,

C.D. California.

April 29, 2010.

Arthur S. Gold, Gold & Coulson, Jay B. Ross, Jay B. Ross & Associates PC, Chicago, IL, Brian J, Robbins, Kevin A. Seely, Robbins Umeda LLP, San Diego, CA, for Plaintiff.

Henry Z. Carbajal, III, Fenwick and West, Mountain View, CA, Laurence F. Pulgram, Kathryn J. Fritz, Leslie A. Kramer, Fenwick and West, San Francisco, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [73]

STEPHEN V. WILSON, District Judge.

I. INTRODUCTION

Plaintiffs allege that Defendant violated their common law and statutory rights of publicity by using Plaintiffs' images, names, and likenesses without Plaintiffs' permission. Plaintiffs also allege an unjust enrichment cause of action premised on the same underlying facts as the publicity rights claims.

Defendant moves for summary judgment on the ground that Plaintiffs' claims are time-barred by California's two-year statute of limitations governing publicity rights actions. As described below, Defendant is entitled to summary judgment on all of Plaintiffs' claims.

II. BACKGROUND AND PROCEDURAL HISTORYA. PLAINTIFFS' ALLEGATIONS ¹

Plaintiffs, Anna Maria Alberghetti and Bonnie Pointer, are artists/entertainers who have worked in a variety of mediums.² Plaintiffs are both California residents. (Compl. ¶¶ 7-8.) Defendant Corbis Corporation is a photo-licensing company incorporated in Nevada and headquartered in Washington state.

On its website, Defendant provides a catalog of roughly five million photographs available to its users. The website's users can purchase a license to use copyrights for those photographs. Plaintiffs allege that their photographs and names are included in this online catalog. Plaintiffs allege that Defendant's users are able to type search terms (such as names) into the website, which sorts the files according to the user's search. Plaintiffs further allege that Defendant itself has taken efforts to match individuals' names with their photographs.

As part of the copyright licensing agreement it sells to its users, Defendant notifies its licensees that they are only licensing the copyright to use the image and that the buyer may have to obtain the additional rights in order to display and use the images. Defendant's agreement specifically notes that licensees may have to obtain licenses to use the photo subjects' rights of publicity.

The essence of Plaintiffs' Complaint is that Defendant is infringing Plaintiffs' rights by providing a searchable catalog of its photo database. This catalog uses Plaintiffs' names and images to advertise the underlying product offered by Defendant (copyright licenses). Thus, Plaintiffs assert that Defendant infringes their rights of publicity because Defendant's use of their names and images helps Defendant sells its photo copyright licenses to its users.

In its answer, Corbis admits that it “has displayed photographic works in which Plaintiffs appeared on Corbis' Website for the purposes of selling copyright licenses.” (Answer ¶ 22.) It also admits “that the names of Plaintiffs may be used in the search toolbar on Corbis' Website to locate those works.” ( Id.) Corbis admits that it “has sold copyright licenses for some of those works” in which Plaintiffs' appeared. ( Id. at ¶ 21.) Corbis further admits that it “charges a varying rate for the license of each work depending on its intended end-use.” ( Id. at ¶ 20.)

B. PROCEDURAL HISTORY

The Court previously denied Defendant's Motion to Dismiss. Defendant sought to preempt Plaintiffs' publicity rights claims on the basis of Copyright preemption. On October 28, 2009, the Court denied Defendant's Motion to Dismiss the Complaint for failure to state a claim. [Docket no. 34.] The Court held that Plaintiffs' rights of publicity were legally distinct from Defendant's copyrights and were therefore not preempted by federal copyright law. The Court noted that in a publicity rights action like the present one, “the object that is ‘fixed in a tangible medium of expression’ is the physical likeness and persona of the Plaintiffs. Name, likeness, and persona are not copyrightable subject matter, both under the Copyright Act and the Copyright Clause of the Constitution. A name, likeness, or persona is not a work of ‘authorship’ entitled to copyright protection.” [Order at 8-9.] The Court also held that Defendant's actions, as alleged in the Complaint, were not protected by the First Amendment because “Plaintiffs allege that Defendant's use ‘is not connected with any news, public affairs, sports broadcast or account, or any political campaign.’ ” [Order at 12-13, quoting Compl. ¶ 24.]

Plaintiffs then filed a Motion for Class Certification. On January 13, 2010, the Court denied Plaintiffs' Amended Motion for Class Certification. [Docket no. 61; published as Alberghetti v. Corbis Corp., 263 F.R.D. 571 (C.D.Cal.2010).] The Court noted that Plaintiffs and their counsel disagreed over whether the class should include non-entertainers and whether the class should primarily seek monetary damages or injunctive relief. [Order at 11-23.] The Court accordingly held that Plaintiffs failed to satisfy the Rule 23(a)(4) “adequacy” requirement because “[b]etween the two Plaintiffs and their counsel, there are three different conceptions of what the class should include and what relief it should seek.” [Order at 18.]

In the present Motion, Defendant is seeking summary judgment on the ground that Plaintiffs' claims are time-barred by California's two-year statute of limitations.

C. DEFENDANT'S UNCONTESTED FACTS

For purposes of the Motion for Summary Judgment, Defendant has presented the following uncontested facts. Plaintiffs introduce a single piece of evidence in opposition.

Defendant Corbis owns and licenses copyrights to various visual works to a variety of end users, including periodicals for editorial uses, book publishers, and other news media outlets including television or other video outlets. (SUF 1.) In connection with its licensing activity, Corbis displays its copyrighted photographs on its websites, including www. corbisimages. com and www. corbisoutline. com, in the form of an online digital catalog. (SUF 2.) When Corbis receives digital images from its various image sources, it creates several different digital files with different image resolutions for each image. These different digital files include an identical image and do not differ in terms of subject matter, image cropping, colorization, or anything other than image resolution. (SUF 3.) ³ After these files are created, Corbis makes the images available on its website catalog for its users to view and purchase licenses. Once the files for an image are created and made available in its catalog, the image files are not subsequently altered. (SUF 4.)

Users of the Corbis website can view the online catalog, select the copyrighted image they would like to license and, after registering on the Corbis website, acquire a license to use the copyrights and obtain a copy of the image. (SUF 5.) To license a Corbis image, a user can search for an image on the Corbis website. Once the user finds an image it wants to license, it selects the image dimensions it wants to license from the available pre-created files for that image. (SUF 6.) If the user wishes to complete the purchase, the user selects from the pre-created files for that particular image. The user then informs Corbis about the intended use of the image, the size of the use, the industry, and other identifying information. Once the license transaction is completed, the licensed image is immediately downloadable by the user. (SUF 7.) The Corbis end-user license agreement used is a standardized agreement, rather than one negotiated on an individual customer basis, and it is available on the Corbis website.⁴ Corbis has not revised this standard end-user licensing agreement since June 2005. (SUF 8.)

Plaintiff Anna Maria Alberghetti appears in, or her name is associated with, twenty-one different images in the Corbis catalog. Each of these images was first made available on Corbis's website more than two years prior to the filing of this action on August 5, 2009.⁵ (SUF 9.) Plaintiff Bonnie Pointer appears in, or her name is associated with, nine different images in the Corbis catalog. Each of these images was first made available on Corbis's website more than two years prior to the filing of this action on August 5, 2009.⁶ (SUF 10.)

Corbis has sold ten licenses that include Plaintiffs' image or name. All of the licenses were governed by Corbis's standard End-User License. (SUF 11.) Nine of the ten images were sold without any modification at all. (SUF 12.) In the tenth image, sold on March 8, 2005, Corbis created a higher-resolution file at the customer's request. (MacLean Decl. ¶ 17.)

In opposition, Plaintiffs submit a copy of a deposition transcript from a related action. (Gold Decl., Ex. 1.) The deposition testimony was given by one of Corbis's in-house attorneys.⁷ The deposition does not contradict Defendant's Statement of Uncontroverted Facts, but merely provides additional detail regarding Uncontroverted Fact number seven: “The user then informs Corbis about the intended use of the image, the size of the use, the industry, and other identifying information.” (SUF 7.) The deposition testimony merely repeats this Uncontroverted Fact while providing greater detail about Corbis's approach to pricing its products.

III. LEGAL STANDARDA. SUMMARY JUDGMENT

Rule 56(c) requires summary judgment for the moving party when the evidence viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Se...