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Photog could sue for unlicensed photo use on company’s site

Where a company hired an outside firm to create a commercial website and the outside firm used an unlicensed, copyrighted photo to accompany an article posted on one of the webpages, both the company and the owner of the outside firm could be sued for copyright infringement.

Background

On July 11, 2011, Allesandro Cancian took a photograph that would come to be titled “Speeding Fall.” Though the original photo was taken during the summer, Cancian altered the colors of the leaves on the trees on either side of the road so that the photo appeared to depict a roadway in the fall, as the leaves were changing. Cancian also used a smoothing effect on the photo.

Cancian’s purpose in taking the photo was artistic expression. In March 2012, Cancian posted the photo on the website “www.500px.com,” which provides exposure and licensing opportunities to photographers. The photo was registered with the U.S. Copyright Office on May 5, 2017.

Lindsay Michelle Stinson is the sole owner and principal of Stinson Communications LLC, a marketing and website development company. Stinson owns the licensing rights to a number of stock photos through various stock photograph companies. Hannabass and Rowe Ltd., an auto body repair business, contracted with Stinson Communications to develop and maintain a website providing information about the corporation’s services, hours of operation and other informational articles. Stinson used Cancian’s “Speeding Fall” photo on Hannabass’s website, on a page featuring an article on safe driving during fall weather.

On Feb. 7, 2017, Stinson was notified that her use of the “Speeding Fall” photo was prohibited, and she removed the photo that same day. On June 20, 2018, Cancian initiated this suit against Stinson and Hannabass, seeking damages for their alleged copyright infringement.

Stinson and Hannabass now move for summary judgment and to strike Cancian’s response to their motion.

Analysis

Although there is no dispute that Cancian’s response to defendants’ summary judgment motion was submitted five days late, the drastic remedy of striking the response is unwarranted. Notably, Cancian is not wholly responsible for the delay as it was caused by an outside reporting company’s failure to timely turn over two key deposition transcripts despite Caspian’s repeated and good faith efforts to obtain them. In addition, defendants have failed to demonstrate that they would be prejudiced by the court’s consideration of the response.

Nevertheless, while the court will consider the response, it will not consider the handwritten deposition notes contained in the first exhibit to the response that were submitted in lieu of the deposition transcripts Caspian was unable to obtain as unsworn and unsigned written statements cannot be relied on in deciding a motion for summary judgment.

Under the Copyright Act, a corporate officer may be personally liable for the actions of a corporation if the officer was the dominant influence in the corporation and determined the policies that resulted in the infringement. Here, the fact that Stinson is the owner, principal and sole member of Stinson Communications and personally selected the infringing photo for use on Hannabass’s website is sufficient to create an issue of fact regarding her personal liability and precludes summary judgment on tis ground.

Moreover, it is well settled that a person or entity can be found to have infringed a copyright based on the acts of another. Even if Stinson Communications is deemed to be an independent contractor, there exist issues of fact as to whether Hannabass had the right and ability to supervise the creation of its website. Further, the fact that the infringing photo was posted on Hannabass’s commercial website is evidence that the company benefited financially from the infringement. As such, Hannabass is not entitled to summary judgment on the ground that it cannot be held vicariously liable.

The court finds little, if any, transformative value in the use of the photo on Hannabass’s website. The photo depicts a road in autumn and accompanying the photo with an article on driving safety does not change that interpretation. Further, Stinson’s use of the photo serves neither a technological nor documentary function.

Stinson and Hannabass were not trying to sell the photo or even draw any special attention to it, but the use of the photo on a commercial website was somewhat commercial even if it was not specifically used to promote the company. Though the photo itself is a creative work, the use of the photo itself was not tied to this creative expression as defendants could have used a number of other photos to achieve the same purpose.

While the photo was reduced in size, it was reproduced in its entirety. In addition, allowing website operators to use copyrighted photographs without obtaining licenses would plainly harm the market for copyrighted work.

Under these circumstances, defendants are not entitled to summary judgment under the fair use doctrine.

Motions denied.

Cancian v. Hannabass and Rowe Ltd., Case No. 7:18-cv-283, July 19, 2019. WDVA at Roanoke (Urbanski). VLW 019-3-354. 21 pp.

VLW 019-3-354