Mango v. Buzzfeed, Inc.

• Decision Date: 17 January 2019
• Docket Number: 17 Civ. 6784 (VM)
• Citation: 356 F.Supp.3d 368
• Parties: Gregory MANGO, Plaintiff, v. BUZZFEED, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

356 F.Supp.3d 368

Gregory MANGO, Plaintiff,

v.BUZZFEED, INC., Defendant.

17 Civ. 6784 (VM)

United States District Court, S.D. New York.

Signed January 17, 2019

Joseph Anthony Dunne, James H. Freeman, Liebowitz Law Firm, PLLC, Valley Stream, NY, for Plaintiff.

Eleanor Martine Lackman, Brittany Laine Kaplan, Cowan, DeBaets, Abrahams & Sheppard LLP, New York, NY, for Defendant.

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Plaintiff Gregory Mango ("Mango") brings this action against defendant BuzzFeed, Inc. ("BuzzFeed"), alleging that BuzzFeed reproduced and published without authorization a copyrighted photograph taken and owned by Mango (the "Photograph"). (See"Amended Complaint," Dkt. No. 16.) Mango alleges that he created the Photograph, which depicts a man named Raymond Parker ("Parker") sitting on a couch, and licensed the Photograph to the New York Post , a daily newspaper. Mango alleges that BuzzFeed subsequently published a copy of the Photograph on its website, BuzzFeed News, without licensing the Photograph or otherwise obtaining Mango's permission to do so. (See id. ¶¶ 17-26.) On these facts, Mango brings claims for copyright infringement (Count I) and for the removal of copyright management information (Count II). (See id. ¶¶ 27-42.)

After the Court denied Mango's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, the case proceeded to a bench trial on both counts. (See Dkt. Nos. 30, 32.) Ahead of the trial, the parties stipulated to BuzzFeed's liability as to Count I. (See Dkt. No. 46.) After trial, the parties submitted letters pertaining to the elements of Count II. (See"BuzzFeed Oct. 8 Letter," Dkt. No. 52; "Mango Oct. 11 Letter," Dkt. No. 54.) The Court now sets forth its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT ¹

Mango is a professional photographer who makes a living licensing his work, such as the Photograph, to media companies. Mango licenses his photographs in a few ways. Chiefly, Mango works on freelance assignments for the New York Post , licensing his photographs to the newspaper in exchange for a daily rate of $ 300. Sometimes, however, Mango personally negotiates a license for a certain photograph or set of photographs. Mango has personally negotiated licenses to his photographs with other large media companies for fees ranging from $ 250 to $ 750 per photograph. For obvious business reasons, Mango begins these negotiations with a high opening fee offer and generally prefers to license sets of photographs at a lower fee per photo, but larger overall fee. Such opportunities for negotiation arise partly from his work for the New York Post , because media companies sometimes seek to license photographs that they first see published in the newspaper. As a final method of licensing his work, Mango syndicates some of his work via photography agencies, which then negotiate licenses on his behalf.

Mango created the Photograph while working on one of his usual freelance assignments for the New York Post. On January 18, 2017, Mango was covering the story of Parker, the lead figure in a discrimination lawsuit against New York City brought by federal prosecutors. The New York Post used the Photograph on its website in a January 18, 2017 article about Parker and the lawsuit (the "New York Post Article"). The name "Gregory P. Mango" appeared in a separate line of text below the Photograph but above the article text. Credits such as this one are commonly known in the industry as "gutter credits" and are often placed adjacent to photographs to indicate its photographer.² When the Photograph is downloaded from the New York Post Article, its metadata does not contain any gutter credit or other attribution to Mango, but provides a hyperlink to the New York Post Article.

The Photograph appeared on BuzzFeed News months later, when a veteran BuzzFeed reporter covered a development in Parker's case. On April 10, 2017, federal prosecutors announced that New York City settled the lawsuit involving Parker. The next day, Gregory Hayes ("Hayes") wrote an online article for BuzzFeed covering the lawsuit (the "BuzzFeed Article"). Hayes has written over a thousand articles for BuzzFeed, each of which is usually accompanied by at least one photograph. Hayes obtains photographs from a variety of sources: stock photography agencies, staff photographers, and freelance photographers. In some instances, an editor might find a photograph for Hayes's article. BuzzFeed trains reporters like Hayes to determine the origin of photographs and instructs them never to use photographs without permission. Unsurprisingly then, Hayes's articles always included gutter credits underneath photographs. Hayes testified that he understands he is required to obtain permission and credit photographers for their work, and that he has repeatedly done so in the past. Despite his training and knowledge of BuzzFeed's rules about obtaining permission for photographs and crediting photographers, Hayes included in the BuzzFeed Article an unlicensed copy of the Photograph without attribution to Mango.

The parties stipulated that BuzzFeed's use of the Photograph was unlicensed, but presented conflicting evidence on how this unlicensed use occurred. Hayes maintained that Liane Fisher ("Fisher"), Parker's attorney, gave him permission on a telephone call to use the Photograph, but Fisher denied -- albeit tentatively -- that she gave him permission.

The events before and after the telephone call are clear. At about 10:54 a.m. on April 11, 2017, Hayes reached out to Fisher via email, seeking comment about the settlement for his article. About twenty minutes later, Fisher replied to the email to say she would call within the hour. Hayes followed up quickly to that response by asking Fisher to send a photograph of Parker. The two spoke on the telephone at some point later that day, but Fisher never sent Hayes a photograph of Parker. Instead, Hayes downloaded the Photograph from the New York Post Article at around 11:48 a.m. that morning. Hayes testified that he did not see the gutter credit when he downloaded the Photograph. The Photograph was then published with the BuzzFeed Article with a gutter credit listing "Fisher & Taubenfeld," Fisher's law firm. Hayes created this gutter credit. The BuzzFeed Article also hyperlinked to the New York Post Article.

The conflicting evidence thus centers around what Hayes and Fisher said during the telephone call. The Court recognizes that evaluating the competing accounts of the telephone call and surrounding events rests largely on a determination of the witnesses' credibility. The Court also recognizes that "[c]redibility determinations are among the most subtle a fact-finder is called upon to make" because "they involve complex assessments of demeanor, bias, motive, consistency, probability, memory, and a host of other factors." Starr Intern. Co., Inc. v. American Intern. Group, Inc., 648 F.Supp.2d 546, 550 (S.D.N.Y. 2009). Further, self-interest "creates such a powerful incentive to shade the truth that it is unusual for an interested witness to be totally candid." Id.

Hayes testified that during the telephone call, Fisher advised him to use the Photograph, but the evolution and context of that testimony is telling. In addition to Hayes's unexplained conduct and shifting testimony, the Court also takes into account his obfuscatory and defensive demeanor in the courtroom during his testimony.

To start, Hayes first asserted the Photograph was "given" to him despite conceding early on that he downloaded the Photograph from the New York Post Article. (Trial Tr. at 33-34.) He then clarified that he was "given access" to the Photograph. (Id. ) Hayes later stated that Fisher "advised" him to use the Photograph from the New York Post Article and stated that she had the authority to distribute the Photograph to media outlets. (Id. at 100.)

Fisher does not recollect her telephone call with Hayes in any detail. When asked whether she directed Hayes to the Photograph, she testified "I don't remember, but I don't believe so." (Id. at 59.) Fisher also testified that she "just can't imagine that I talked to him or gave him permission to use a picture that I myself had no authority to give permission for." (Id. at 67.) Fisher's candid admission of her uncertainty bolsters her credibility, and the Court notes that Fisher does not face the same "powerful incentive" of self-interest as Hayes. Starr Intern., 648 F.Supp.2d at 550.

Fisher's uncertain testimony must be balanced against Hayes's credibility problems and unexplained conduct. First, Hayes did not explain why he never contacted the New York Post to determine the origin of the Photograph, contrary to BuzzFeed's policy. His lack of diligence diminishes the import of his repeated emphasis that he simply never saw Mango's name in the gutter credit. And even that testimony is hard to credit. Hayes described the gutter credit as faint and difficult to read, but, when pressed by the Court, he was able to make out the gutter credit clearly from a few feet away on a computer monitor. (Id. at 114.) Thus, even if it was faint, Hayes would have seen the gutter credit had he looked for it. As noted earlier, Hayes is a veteran reporter who is familiar with the importance of obtaining permission to use photographs and the use of gutter credits. His experience as a veteran reporter also makes the lack of author information in the metadata irrelevant, because Hayes could have contacted the New York Post to determine the Photograph's origin.

Finally, Hayes's certitude at trial that Fisher gave him oral permission to use the Photograph is belied by his belief almost a year earlier that Fisher had specifically emailed him the Photograph. In September 2017, when Hayes learned of Mango's claim against BuzzFeed for its use of the Photograph, he emailed Fisher...