Fioranelli v. CBS Broad. Inc.
| Decision Date | 28 July 2021 |
| Docket Number | 15-CV-0952 (VSB) |
| Citation | 551 F.Supp.3d 199 |
| Parties | Anthony FIORANELLI, Plaintiff, v. CBS BROADCASTING INC., BBC Worldwide Americas, Inc., T3 Media, Inc., Testimony Films, Paramount Pictures Corporation, Morningstar Entertainment, Inc., Creative Differences, LLC, JVCT Productions, Inc., Ipse Dixit, Inc., and A&E Television Networks, LLC, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Hillel Ira Parness, Parness Law Firm, PLLC, New York, NY, Counsel for Plaintiff.
Elizabeth Seidlin-Bernstein, Ballard Spahr LLP (PA), Philadelphia, PA, Counsel for Defendants.
I. Factual Background...––––
II. Procedural History...––––
III. Legal Standard...––––
IV. Discussion...––––
V. Conclusion...––––
Plaintiff Anthony Fioranelli ("Plaintiff") brings this action against Defendants CBS Broadcasting, Inc., BBC Worldwide Americas, Inc., T3 Media Inc., Testimony Films, Paramount Pictures Corporation, Morningstar Entertainment, Inc., Creative Differences, LLC, JVCT Productions, Inc., Ipse Dixit, Inc., and A&E Televisions Networks, LLC (collectively "Defendants"), asserting claims of copyright infringement, copyright inducement, and breach of contract based on Defendants’ uses of Plaintiff's video footage from the World Trade Center site following the attacks of September 11, 2001 ("9/11 Material"). Now before me are (1) Defendants’ motion in limine to exclude evidence, testimony, or argument concerning expert opinions; (2) Plaintiff's request to submit corrected certifications of Anthony Fioranelli and Hillel Parness; (3) Defendants’ letter motion opposing that request; (4) Defendants’ motion for summary judgment seeking dismissal of all of Plaintiff's claims; and (5) Plaintiff's motion for summary judgment on his copyright infringement claim.
Defendants’ motion in limine to exclude evidence, testimony, or argument concerning expert opinions is DENIED AS MOOT. Plaintiff's request to submit corrected certifications of Anthony Fioranelli and Hillel Parness is GRANTED, and Defendants’ letter motion opposing that request is DENIED. Defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART. Because I find that Defendant Paramount Pictures Corporation's uses of Plaintiff's 9/11 Material in World Trade Center and World Trade Center Featurette are fair, Defendant Paramount Pictures Corporation's motion to dismiss Plaintiff's copyright infringement claim is GRANTED and that claim is dismissed. I find that there are issues of fact relating to the purposes of Defendants’ uses in ZERO, Conspiracy Files, Death Ray, Rush to War, Celsius, Untold History , and Seven Signs ; therefore, Defendants’ motion for summary judgment dismissing Plaintiff's copyright infringement claims related to those films is DENIED. Defendants’ motion for summary judgment dismissing Plaintiff's copyright inducement claim is GRANTED. Defendants’ motion for summary judgment dismissing Plaintiff's breach of contract claim is GRANTED.
Plaintiff's motion for summary judgment on his copyright infringement claim is GRANTED IN PART and DENIED IN PART. Because I find that Defendants’ uses in Miracle Survivor , Crime Scene 9/11 , DTCW , Stairway B, Relics , How It Was , and the CBS 9/11 Newsreels are not de minimis , are not fair, and that the record demonstrates Defendants’ liability for copyright infringement, Plaintiff's motion is GRANTED as to these works. Plaintiff's motion is DENIED as to the remaining works.
Plaintiff Anthony Fioranelli brings this action against Defendants CBS Broadcasting, Inc. ("CBS"), BBC Studios America, Inc. ("BBC"), T3 Media, Inc. ("T3")—now known as ("n/k/a") Veritone, Inc. ("Veritone")—Testimony Films ("Testimony"), Paramount Pictures Corporation ("Paramount"), Morningstar Entertainment, Inc. ("Morningstar"), Creative Differences, LLC ("Creative Differences"), JVCT Productions, Inc. ("JVCT"), Ipse Dixit, Inc. ("Ipse Dixit"), and A&E Televisions Networks, LLC ("A&E").1 (Sec. Am. Compl.)2 He brings a copyright infringement claim against all Defendants, (Count I), a claim for inducement to infringe federal registered copyrights against Defendants CBS, BBC, and Veritone, (Count II), and a breach of contract claim against CBS, (Count III). (Id. )
Defendants filed a motion in limine to preclude Plaintiff from offering an expert opinion. (Docs. 150–51.) Because Plaintiff does not offer an expert opinion in support of his cross-motion for summary judgment and opposition to Defendants’ motion, I deny Defendants’ motion in limine as moot.
Defendants also request that I do not consider Plaintiff's second corrected certifications of Plaintiff Anthony Fioranelli and Hillel Parness, (Docs. 176-1, 176-2), which were filed after Defendants’ reply. (Doc. 177.) These second corrected certifications differ from the previously-filed corrected certifications only in that the certification language at the end of the documents is changed to comply with 28 U.S.C. § 1746. (Compare Docs. 166, 167 with Docs. 176-1, 176-2.) Defendants’ request is denied. I will consider the second corrected certifications of Plaintiff Fioranelli and Parness in reaching decisions with regard to the motions before me.3
The parties purport to dispute many material facts. A majority of these disputes are irrelevant to the issues before me. Additionally, Plaintiff consistently fails to identify specific facts to dispute the facts presented by Defendants as required by Local Rule 56.1(c), but instead makes arguments about the implications of those facts. Plaintiff also uses his response as an opportunity to improperly add additional facts. Defendants, on the other hand, unnecessarily devote a portion of their papers to identify minor, non-material use by Plaintiff of the citation "id. " These sorts of objections are unproductive and are not in the spirit of Rule 56.1. See Holtz v. Rockefeller & Co. , Inc., 258 F.3d 62, 74 (2d Cir. 2001) ().
The facts recited below are drawn from Defendants’ Rule 56.1 Statement of Material Facts ("Defs. 56.1"), (Doc. 148), the Corrected Response and Counterstatement of Material Facts of Anthony Fioranelli Made Pursuant to Local Civil Rule 56.1(b) ("Pl. 56.1"), (Doc. 168), and Defendants’ Reply Statement of Material Facts and Response to Plaintiff's Counterstatement of Material Facts ("Defs. 56.1 Reply"), (Doc. 175). The citations to these submissions incorporate by reference citations to the underlying evidentiary submissions. I also draw facts from other evidence in the record, including the certifications and declarations, and the Second Amended Complaint and exhibits. (See Fed. R. Civ. Pro. 56(c)(3) ()). In this section I recite facts that I find undisputed based on the parties’ submissions unless otherwise indicated.
Plaintiff Anthony Fioranelli is a professional photojournalist who captures both photographs and video footage. (Pl. 56.1 ¶ 142.) He is also the principal of Big Daddy Productions, later rebranded as Multi Media Network News LLC. (Defs. 56.1 ¶ 1; Pl. 56.1 ¶ 159.) Plaintiff licenses his work for use in spot news. (Pl. 56.1 ¶ 161.) Due to the fast-paced approach of spot news, there is no time for later editing, and Plaintiff had to learn how frame shots and edit them in real time. (Id. ¶¶ 168–70.) Often, the photographs and video that Plaintiff and his colleagues captured were time-sensitive, and would sometimes be broadcast within minutes of the filming. (Id. ¶ 172.) Plaintiff licensed his footage to the local New York television stations. (See id. ¶ 175; Fioranelli Cert. ¶ 11, Ex. 4.)4 When negotiating pricing for disaster footage, Plain...
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