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Adler v. Her Campus Media, LLC

United States District Court, D. Massachusetts

November 7, 2019

BESS ADLER, Plaintiff,
v.
HER CAMPUS MEDIA, LLC, Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

          F. Dennis Saylor IV United States District Judge

         This is 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 college students.

         On 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.

         Adler 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.

         I. Background

         A. Factual Background

         The facts are set forth as described in the amended complaint.

         Bess 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. (Id.).

         Her 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).

         The 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).

         B. Procedural Background

         The 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.

         Defendant 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 judgment.

         II. Moti ...


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