Cruz v. Cox Media Grp., LLC

Citation444 F.Supp.3d 457
Decision Date13 March 2020
Docket Number18-CV-1041 (NGG) (AKT)
Parties Alex CRUZ, Plaintiff, v. COX MEDIA GROUP, LLC, Defendant.
CourtU.S. District Court — Eastern District of New York

James H. Freeman, Richard Liebowitz, Liebowitz Law Firm, PLLC, Valley Stream, NY, for Plaintiff.

James A. Trigg, Pro Hac Vice, Kilpatrick Townsend & Stockton LLP, Atlanta, GA, Robert Nathan Potter, Kilpatrick Townsend & Stockton LLP, New York, NY, for Defendant.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Alex Cruz brings this action against Defendant Cox Media Group, LLC ("Cox") alleging infringement of Plaintiff's copyright in a photograph he took of the arrest of terror suspect Sayfullo Saipov. (Compl. (Dkt. 1).) Before the court are cross motions for partial summary judgment. Plaintiff seeks judgment on Cox's liability for infringement and dismissal of Cox's affirmative defenses. (See Pl.'s Mem. in Supp. of Mot. for Part. Summ. J. (Dkt. 29) ("Pl.'s Mem."); Pl.'s Mem. in Opp. to Def.'s Cross Mot. for Part. Summ. J. (Dkt. 40) ("Pl.'s Opp.").) Cox opposes Plaintiff's motion and seeks either a judgment of no infringement or, in the alternative, fair use. (See Def.'s Cross Mem. in Supp. of Mot. for Part. Summ. J. (Dkt. 34) ("Def. Mem."); Def's Reply in Supp. of Cross Mot. for Summ. J. (Dkt. 42) ("Def. Reply").) For the following reasons, Plaintiff's motion is GRANTED and Defendant's motion is DENIED.

I. BACKGROUND

The court constructs the following statement of facts from the parties' Local Rule 56.1 Statements and the admissible evidence they submitted. Except where otherwise noted, the following facts are undisputed. All evidence is construed in the light most favorable to the non-moving party with all "reasonable inferences" drawn in its favor. ING Bank N.V. v. M/V TEMARA, IMO No. 9333929 , 892 F.3d 511, 518 (2d Cir. 2018).

Plaintiff is Alex Cruz, a New York City native who works at Jennifer Convertibles, a furniture company in downtown Brooklyn. (Oct. 18, 2018 Tr. of Cruz Dep. ("Cruz Dep.") (Dkt. 37-1) 9:17-25.) Cruz is not and has never been a professional photographer. (Def.'s R. 56.1 Stmt. ("Def. 56.1") (Dkt. 39) ¶ 37.) On October 31, 2017, Cruz was walking on Chambers Street in the Tribeca neighborhood of New York City, on the way to visit the apartment of his girlfriend, Trish McFarlane. (Id. ¶ 42.) Crux noticed a "big commotion" near the intersection of Chambers and West Streets, and saw a man acting erratically as law enforcement officers approached him. (Id. ) As Cruz saw the scene unfolding, he reached for his iPhone and took a photograph of a criminal suspect named Sayfullo Saipov, lying on the ground, being apprehended by New York City police after Saipov had committed a terrorist attack (the "Photograph"). (See Ex. A hereto.)

After taking the Photograph, Cruz continued on to McFarlane's apartment and sent the Photograph to a friend, Lenny Bautista. (Def. 56.1 ¶ 46.) Until Bautista informed him otherwise, Cruz believed he had taken a "simple picture" of somebody who appeared to be "acting crazy." (Id. ¶ 47.) Bautista posted the Photograph to his Instagram account @illmaticNYC and, initially, took credit for the Photograph. (Pl.'s R. 56.1 Stmt. ("Pl. 56.1") (Dkt. 33) ¶ 10.) However, McFarlane posted her own message on Instagram, clarifying that it was Cruz, and not Bautista, who had taken the Photograph. (Id. ) Media organizations then began contacting McFarlane, asking her to seek permission from Cruz to republish the Photograph. Shortly thereafter, Cruz entered into two separate licensing agreements (with Cable News Network, Inc. ("CNN"), and NBC News ("NBC"), respectively), in which Cruz granted the outlets permission to publish the Photograph in exchange for licensing fees and credit. (Id. ¶ 11.) The parties dispute the exact time Cruz entered into these agreements with CNN and NBC: Cruz states that he entered into the agreements "on or around October 31, 2017," (See Pl. 56.1 ¶¶ 12, 13), while Cox maintains that CNN and NBC did not send proposed licensing agreements to Cruz until November 1, 2017, and that the October 31, 2017 licensing agreements Cruz produced in discovery are not final executed documents. (See Def. 56.1 ¶¶ 12, 13.) Regardless, it is undisputed that media outlets expressed interest in publishing the Photograph and sought to enter into licensing agreements with Cruz to do so.

One media company that did not seek to enter into a licensing agreement with Cruz was Cox, a national media company with 13 television stations, 61 radio stations, four newspapers, and 72 websites. (Def. 56.1 ¶ 36.) Cox's media portfolio includes the WSB-TV television station in Atlanta, Georgia, as well as its associated wsbtv.com website. (Id. ) On October 31, 2017, Cox published a news story on its WSB-TV website, eventually bearing the title "8 dead in ‘cowardly act of terror’ in New York City " (the "Article"). (Id. ¶ 55.) Later that same day, the Photograph was added to the gallery of video and photographic content for the Article. (Id. ) The Photograph appeared, in full, as the second item in a gallery of video and photographic content positioned below both the headline and the date and time that the Article was last updated on the WSB-TV website, as well as on Cox's Twitter and Facebook pages. (Decl. of James Trigg ("Trigg Decl.") (Dkt. 37) ¶ 5; see also Oct. 31, 2017 WSB-TV Tweet ("WSB Tweet") (Dkt. 30-5) at ECF 2; Oct. 31, 2017 WSB-TV Facebook Post ("WSB Facebook Post") at ECF 2.) Cox did not credit Cruz as the author of the Photograph on the face of the Article or on the WSB Tweet and Facebook Post, nor did Cox seek Cruz's permission to publish the Photograph or license the Photograph directly from Cruz. (Pl. 56.1 ¶¶ 21-24.)

On November 1, 2017, Cruz, acting without counsel, filed a copyright application with the U.S. Copyright Office seeking to register the Photograph (as well as another photograph Cruz took of the same scene). (Nov. 1, 2017 Copyright Application (Dkt. 37-1) at ECF 91.) A few days later, on November 7, 2017, Cruz, now through counsel, filed a new registration of the Photograph with the Copyright Office (Pl. 56.1 ¶ 31; Cruz Dep. at 51:21-54:12.) The application was approved and Cruz currently possesses a registration certificate for the Photograph, numbered VA 2-074-488 and dated November 7, 2017. (Pl. 56.1 ¶ 32; see also Certificate of Registration (Dkt. 31-2) at 1.)

II. LEGAL STANDARD

A court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(a). "A ‘material’ fact is one capable of influencing the case's outcome under governing substantive law, and a ‘genuine’ dispute is one as to which the evidence would permit a reasonable juror to find for the party opposing the motion." Figueroa v. Mazza , 825 F.3d 89, 98 (2d Cir. 2016) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). The movant may discharge its initial burden by demonstrating that the non-movant "has ‘failed to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ " Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co. , 255 F. Supp. 3d 443, 451 (S.D.N.Y. 2015) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alteration adopted)).

"To determine whether an issue is genuine, [t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion.’ " Mikhaylov v. Y & B Trans. Co. , No. 15-CV-7109 (DLI), 2019 WL 1492907, at *3 (E.D.N.Y. Mar. 31, 2019) (quoting Cronin v. Aetna Life Ins. Co. , 46 F.3d 196, 202 (2d Cir. 1995) ). While the court must draw all inferences in favor of the non-movant, the non-movant "may not ‘rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.’ " Fletcher v. Atex, Inc. , 68 F.3d 1451, 1456 (2d Cir. 1995) (quoting Knight v. U.S. Fire Ins. Co. , 804 F.2d 9, 12 (2d Cir. 1986) ).

The same standards apply to cross-motions for summary judgment. "[E]ach party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Morales v. Quintel Entm't, Inc. , 249 F.3d 115, 121 (2d Cir. 2001) (citing Schwabenbauer v. Bd. Of Educ. , 667 F.2d 305, 324 (2d Cir. 1981) ). "[W]hen both parties move for summary judgment, asserting the absence of any genuine issues of material fact, a court need not enter judgment for either party. Rather, each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motions is under consideration." Id. at 121 (citations omitted).

III. DISCUSSION
A. Copyright Infringement

Cruz moves for summary judgment on the issue of copyright infringement, arguing that Cox infringed his copyright by unlawfully publishing the Photograph for its own use. (Pl.'s Mem. at 6; Pl's. Opp. at 1.) The court finds that the undisputed facts demonstrate Cox's liability for copyright infringement and grants Cruz's motion.

"To establish [copyright] infringement two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

1. Ownership

"A certificate of copyright registration is prima facie evidence of ownership of a valid copyright, but the alleged infringer may rebut that presumption." Scholz Design, Inc. v. Sard Custom Homes, LLC , 691 F.3d 182, 186 (2d Cir. 2012) (citing MyWebGrocer, LLC v. Hometown Info, Inc. , 375 F.3d 190, 192 (2d Cir. 2004) ). Here, Cruz has...

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  • Golden v. Michael Grecco Prods., Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • March 9, 2021
    ...would be an empty one if it could be avoided merely by dubbing the infringement a fair use ‘news report.’ " Cruz v. Cox Media Grp., LLC , 444 F. Supp. 3d 457, 467 (E.D.N.Y. 2020) (quoting Harper & Row , 471 U.S. at 557, 105 S.Ct. 2218 ). Like the infringing defendant in Cruz , Golden "used ......
  • Golden v. Michael Grecco Prods., Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • March 9, 2021
    ...be an empty one if it could be avoided merely by dubbing the infringement a fair use 'news report.'" Cruz v. Cox Media Grp., LLC, 444 F. Supp. 3d 457, 467 (E.D.N.Y. 2020) (quoting Harper & Row, 471 U.S. at 557). Like the infringing defendant in Cruz, Golden "used the Photograph as an illust......
1 books & journal articles
  • COPYRIGHT AND THE CREATIVE PROCESS.
    • United States
    • Notre Dame Law Review Vol. 97 No. 1, November 2021
    • November 1, 2021
    ...grounds sub nom. Situation Mgmt. Sys., Inc. v. ASP. Consulting LLC, 560 F.3d 53 (1st Cir. 2009); see also Cruz v. Cox Media Grp., 444 F. Supp. 3d 457, 465-66 (E.D.N.Y. 2020) (suggesting that authorial purpose is irrelevant in photography cases); Roberta Rosenthal Kwall, Inspiration and Inno......

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