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Drauglis v. Kappa Map Group, LLC

United States District Court, D. Columbia.

August 18, 2015

ART DRAUGLIS, Plaintiff,

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[Copyrighted Material Omitted]

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          For ART DRAUGLIS, Plaintiff, Counter Defendant: Jerold I. Schneider, LEAD ATTORNEY, SCHNEIDER ROTHMAN INTELLECTUAL PROPERTY LAW GROUP PLLC, Boca Raton, FL.

         For KAPPA MAP GROUP, LLC, Defendant, Counter Claimant: Esther Yong, LEAD ATTORNEY, LEWIS BAACH PLLC, Washington, DC; Clifton Travis Tunnell, PRO HAC VICE, ANDERSON DAILEY LLP, Atlanta, GA.

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         AMY BERMAN JACKSON, United States District Judge.

         Plaintiff Art Drauglis brought this copyright action against defendant Kappa Map Group, LLC, arising out of defendant's use of a photograph taken by plaintiff as the cover art for a commercially-released Montgomery County, Maryland street atlas. Compl. [Dkt. # 1]. In Count I, plaintiff claims that defendant infringed his valid copyright in the photograph, in violation of 17 U.S.C. § 501, when it copied his work and used it on the atlas's cover without plaintiff's permission. Id. ¶ ¶ 19-24. In Count II, plaintiff alleges that defendant included false copyright management information (" CMI" ) for the photograph in the atlas, in violation of 17 U.S.C. § 1202(a).[1] Id. ¶ ¶ 25-28. The parties filed separate cross-motions for summary judgment on each count.

         Plaintiff alleges that defendant infringed his copyright in the photograph because it " copied Plaintiff's work and made derivatives of the work without Plaintiff's authorization in violation of 17 U.S.C. § 501." Id. ¶ 22. But plaintiff uploaded the photograph to a public photo-sharing website, where he did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation. Plaintiff repeatedly voices consternation in his pleadings about defendant's distribution of the publication that displayed his work on its cover for profit, but of the many licenses available to choose from, plaintiff selected the one that specifically authorized commercial use. So the only issue before the Court in Count I is whether defendant -- which gave plaintiff full credit for the work it displayed on the cover of its publication -- complied with the technical terms of the license under which plaintiff published the work. The Court finds that it did. As for Count II, the Court finds that the allegedly false copyright notice was not " conveyed in connection with" the photograph, which is the necessary predicate for a successful section 1202 claim. Thus, the Court will grant defendant's motions for summary judgment on both counts.


         I. Factual Background

         On April 27, 2008, plaintiff took a photograph entitled " Swain's Lock." Def.'s Statement of Undisputed Material Facts in Supp. of Its Mot. for Partial Summ. J. [Dkt. # 17-2] (" Def.'s SOF" ) ¶ 4; Pl.'s Concise Statement of Undisputed Facts in Supp. of Mot. for Partial Summ. J. on Count I of the Compl. [Dkt. # 20-1] (" Pl.'s SOF" ) ¶ 3; see also Ex. A to Decl. of Karen Taragowski in Supp. of Pl.'s Mot. for Partial Summ J. [Dkt. # 16-1] (the " Photograph" ). Plaintiff then posted the

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Photograph publicly to the Flickr[2] page he shares with his wife. Def.'s SOF ¶ 5; Pl.'s SOF ¶ 5. When plaintiff posted the Photograph on Flickr, he indicated that it was protected by copyright, but that it was licensed pursuant to the Creative Commons Attribution-ShareAlike 2.0 license (" the CC BY-SA 2.0 license" ).[3] Def.'s SOF ¶ 6, Pl.'s SOF ¶ 6. On June 9, 2014, plaintiff registered the Photograph with the Register of Copyrights. Ex. 1 to Notice of Filing Certificate of Copyright Registration [Dkt. # 10-1].

         Defendant is a Pennsylvania-based publisher of maps and atlases. Def.'s SOF ¶ ¶ 2-3; Pl.'s SOF ¶ 1. At some point after plaintiff uploaded the Photograph to Flickr, defendant downloaded a copy of the Photograph from plaintiff's Flickr account, and in July 2012, it began publishing and selling a local atlas, entitled the " Montgomery Co., Maryland Street Atlas," with the Photograph on the cover under the title banner. Def.'s SOF ¶ ¶ 7, 15-16; Pl.'s SOF ¶ 7. The way in which defendant used the Photograph and how it provided plaintiff with attribution for the Photograph in the atlas are the focus of this lawsuit. So, on June 26, 2015, the Court ordered defendant to provide the Court with a copy of the atlas for its review. Minute Order (June 26, 2015). Defendant complied, and a copy of the atlas has been made part of the record in this case. Notice [Dkt. # 37] (the " Atlas" ).

         The top half of the front cover of the Atlas is comprised of the title banner, a list of the regions within the county covered by the Atlas, and a list of features shown on the maps. Atlas at 1.[4] The bottom half of the front cover consists exclusively of a color reproduction of the Photograph, with no text or pictures obscuring it. Id. Nothing on the front cover identifies who took the Photograph, but the following text appears at the bottom of the back cover of the Atlas:

Photo: Swain's Lock, Montgomery Co., MD
Photographer: Carly Lesser & Art Drauglis, Creative Commoms [sic], CC-BY-SA-2.0

Id. at 116. The top half of the back cover consists of the same blue and black logo and title banner that appears on the front, and the bottom half includes advertisements for other products sold by defendant and its affiliates, along with the photo credit set forth above. Id.

         The inside front cover of the Atlas consists of a legend and an index of key places in the county. Id. at 2. The first page of the Atlas itself contains its table of contents, and that page also bears a copyright notice, which states:

Copyright © Kappa Map Group, LLC 2012. Portions © Navteq 2011.[5] All

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Rights Reserved. Reproduction, in whole or in part, by any means whatsoever, is expressly prohibited without permission from the publisher.

Id. at 3. Pages 2 through 81 of the Atlas are all maps, and each individual page displays the following copyright notice at the bottom: " © Kappa Map Group, LLC." Id. at 4-83. Pages 82 through 111 comprise the index, the final page -- 112 -- is left blank for notes, and the inside of the back cover is an advertisement for other Kappa Map travel products. Id. at 84-115.

         II. Procedural History

         Plaintiff filed the two-count complaint in this case on June 19, 2014, seeking declaratory and injunctive relief, damages, fees, and costs. Compl. at 5 ¶ ¶ a--f. Defendant answered and asserted three counterclaims against plaintiff, seeking a declaratory judgment of non-infringement of copyright and a declaratory judgment of non-falsification of CMI, as well as attorneys' fees and costs. Answer & Countercls. [Dkt. # 6] at 9-12.

         Following discovery, defendant moved for summary judgment on Count I, plaintiff's copyright infringement claim, and plaintiff filed a cross-motion seeking judgment in his favor on the same count. Def.'s Mot. for Partial Summ. J. [Dkt. # 17] (" Def.'s Count I Mot." ); Pl.'s Mot. for Partial Summ. J. on Count I & Mem. of P. & A. [Dkt. # 20] (" Pl.'s Count I Mot." ). Meanwhile, it was plaintiff who moved for summary judgment on Count II, the falsification of CMI claim, and defendant filed a cross-motion. Pl.'s Mot. for Partial Summ. J. & Mem. of P. & A. [Dkt. # 14] (" Pl.'s Count II Mot." ); Def.'s Mot. for Partial Summ. J. as to Count II [Dkt. # 21]. On July 10, 2015, the Court heard oral argument on both counts. Minute Entry (July 10, 2015).


         Summary judgment is appropriate " if 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.P. 56(a). The party seeking summary judgment bears the " initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must " designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is " material" only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241, 259 U.S. App.D.C. 115 (D.C. Cir. 1987).

         " The rule governing cross-motions for summary judgment . . . is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion." Sherwood v. Wash. Post, 871 F.2d 1144, 1147 n.4, 276 U.S. App.D.C. 404 (D.C. Cir. 1989),

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quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3, 221 U.S. App.D.C. 288 (D.C. Cir. 1982), abrogated on other grounds by Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111, 1125-26, 335 U.S. App.D.C. 179 (D.C. Cir. 1999). In assessing each party's motion, " [a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party." N.S. ex rel. Stein v. District of Columbia, 709 F.Supp.2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.


         I. Defendant is entitled to summary judgment on Count I because its use of the Photograph in the Atlas did not exceed the scope of the CC BY-SA 2.0 license.

         In Count I, plaintiff asserts a claim for copyright infringement pursuant to 17 U.S.C. § 501. Compl. ¶ ¶ 20-22. " A plaintiff seeking to establish copyright infringement must prove (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." MOB Music Publ'g v. Zanzibar on the Waterfront, LLC, 698 F.Supp.2d 197, 201-02 (D.D.C. 2010), quoting Stenograph LLC v. Bossard Assocs., Inc., 144 F.3d 96, 99, 330 U.S. App.D.C. 147 (D.C. Cir. 1998). The parties do not dispute that plaintiff is the holder of a valid copyright for the Photograph. See Def.'s SOF ¶ 6; Pl.'s SOF ¶ 4. And defendant admits that it downloaded the Photograph from plaintiff's Flickr page and published and sold the Atlas with a copy of the Photograph on the cover. Def.'s SOF ¶ ¶ 15-16. So plaintiff has made out a prima facie case of copyright infringement, but that is not where the dispute in this case lies.

         " [A] 'copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement' and can sue only for breach of contract." Jacobsen v. Katzer, 535 F.3d 1373, 1380 (Fed. Cir. 2008), first quoting Sun Microsys., Inc., v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999), abrogated on other grounds by Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979-80 (9th Cir. 2011), and then citing Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998); see also Atkins v. Fischer, 331 F.3d 988, 992, 356 U.S. App.D.C. 403 (D.C. Cir. 2003) (" [T]he existence of an implied license is an affirmative defense to infringement." ). Only where " a license is limited in scope and the licensee acts outside the scope" can " the licensor . . . bring an action for copyright infringement." Jacobsen, 535 F.3d at 1380, first citing S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir. 1989), and then citing Nimmer on Copyright, § 1015[A] (1999); see also S.O.S., Inc., 886 F.2d at 1087 (" A licensee infringes the owner's copyright if its use exceeds the scope of its license." ), citing Gilliam v. Am. Broad. Cos., 538 F.2d 14, 20 (2d Cir. 1976).

         Plaintiff does not dispute that he published the Photograph pursuant to the CC BY-SA 2.0 license. Pl.'s SOF ¶ 6. And his counsel agreed with the Court's statement that this particular license " specifically authorizes commercial use." Tr. of Mots. Hr'g (July 10, 2015) (" Hr'g Tr." ) 65:21-66:2; see also About the Licenses, Creative Commons, (last visited Aug. 18, 2015) (describing the " CC BY-SA" l i cense as one which " lets others remix, tweak, and build upon [an author's] work even for commercial purposes" ). So the only issue to be determined is whether defendant's use of the Photograph in the Atlas " was outside the scope of the License." SeeJacobsen, ...

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