PAUL L. MERIDETH, JR. d/b/a PAUL L. MERIDETH PHOTOGRAPHY, Plaintiff,
CHICAGO TRIBUNE COMPANY, LLC, a Delaware limited liability company, and TRIBUNE INTERACTIVE, LLC, a Delaware limited liability company, collectively d/b/a CHICAGOTRIBUNE.COM; and DOE I through DOE III, Defendants.
MEMORANDUM OPINION AND ORDER
JAMES B. ZAGEL, District Judge.
Plaintiff, Paul L. Meredith Jr. d/b/a Paul Meredith Photography has brought this action for copyright infringement and violation of the Digital Millennial Copyright Act ("DMCA"), 17 U.S.C.A. § 1202, against Defendant, the Chicago Tribune Company, LLC and Tribune Interactive, LLC. Currently before the Court is Defendant's motion to dismiss Count II of the First Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, Defendant's motion is denied in part and granted in part without prejudice.
The complaint contains three counts, all of which involve Defendant's allegedly unauthorized use of photographs depicting the seminal Chicago author Studs Terkel that were taken by Plaintiff in 1992. Count II, the subject of Defendant's motion to dismiss, is brought pursuant to the DMCA.
It is undisputed that Plaintiff is the copyright holder of the photographs. In June 1995, Plaintiff made certain Terkel photographs (those at issue here) available for limited use by The New Press. According to the complaint, sometime in 2004 Plaintiff became aware that The New Press had distributed the photographs to various media outlets without Plaintiff's permission. Plaintiff filed a complaint against The New Press a year later, and the lawsuit reached a settlement a year after that. As part of the settlement, The New Press sent notice to various media outlets, including Defendant, "explaining that the [photographs] were owned by [Plaintiff] and that any further use could only be made of the [photographs] with [Plaintiff's] prior permission."
In or around May 2012, Plaintiff discovered that Defendant had used at least one of the photographs in a video montage paying tribute to Mr. Terkel that was published online. According to the complaint, captions accompanying the photograph attributed ownership of the photograph to Defendant. Plaintiff was not credited.
The DMCA protects the integrity of copyright management information ("CMI"). The statute defines CMI as "any of the following information conveyed in connection with copies... of a work, " and then lists several categories of such information, including the title and "other information identifying the work, " the author's name, and the copyright owner's name. See § 1202(c)(1)-(7).
Sections 1202(a) and 1202(b) of the statute prohibit the following:
(a) False copyright management information.-No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement-
(1) provide copyright management information that is false, or
(2) distribute or import for distribution copyright management information that is false.
(b) Removal or alteration of copyright management information.-No person shall, without the authority of the copyright owner or the law-
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without ...