United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Dennis Saylor IV United States District Judge
a claim for copyright infringement. Plaintiff Bess Adler is a
professional photographer who licenses her photographs for
use in news and media publications. Defendant Her Campus
Media, LLC operates a website targeted largely at women
January 18, 2018, one of Adler's photographs of the
Second Annual Women's March was posted on the Her Campus
website alongside an article related to the event. Adler had
not authorized the use of the photograph. She then complained
to Her Campus, which apparently then removed the photograph.
has filed suit, alleging that defendant violated the
Copyright Act, 17 U.S.C. § 101 et seq.
Defendant has moved to dismiss the complaint on grounds that
(1) it is entitled to safe harbor protections under the
Digital Millennium Copyright Act (“DMCA”), 17
U.S.C. § 512(c)(1); (2) its use of the photograph is
protected as a fair use under 17 U.S.C. § 107; and (3)
the complaint fails to state a claim upon which relief can be
granted because Adler has not secured permission from the
subjects of the photograph. For the following reasons, the
motion to dismiss will be denied. Defendant has moved in the
alternative for summary judgment, which will also be denied.
facts are set forth as described in the amended complaint.
Adler is a professional photographer who licenses her
photographs to online and print media for a fee. (Am. Compl.
¶ 5). She is based in Brooklyn, New York.
Campus Media, LLC is a limited liability company with a place
of business in Boston, Massachusetts. (Id. ¶
6). Her Campus owns and operates a website at
www.hercampus.com. (Id.). The amended complaint
alleges that Her Campus employs an editorial staff to review
the content posted on its website. (Id. ¶ 12).
dispute concerns a photograph taken by Adler at the
“Second Annual Women's March.” (Id.
¶ 1, Ex. C). The photograph was registered with the
United States Copyright Office and was given registration
number VA 2-094-557 and titled “74S06A4120.jpg.”
(Id. ¶ 9). According to the amended complaint,
on January 28, 2018, the photograph appeared on the website
of Her Campus alongside an article titled The 2nd Annual
Women's March: The Good, The Bad, and The Ugly.
(Id. ¶ 10). It further alleges that Her Campus
editorial staff reviewed the photograph prior to publishing
the article. (Id. ¶ 14). Her Campus did not
license the photograph from Adler and did not have permission
to publish it on the website. (Id. ¶ 11).
complaint in this action was filed on January 15, 2019. It
alleges one count of copyright infringement in violation of
17 U.S.C. §§ 106 and 501. An amended complaint was
filed on June 5, 2019, that alleges additional facts.
Plaintiff seeks an award of either actual damages or
statutory damages, in addition to costs, attorney's fees,
and prejudgment interest.
has asserted two affirmative defenses: (1) that it is
entitled protection under the safe harbor provisions of 17
U.S.C. § 512, and (2) that the appearance of
plaintiff's photograph on its website constituted a fair
use under 17 U.S.C. § 107. Defendant has moved to
dismiss the complaint for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), and, in the alternative, for summary