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Leveyfilm, Inc. v. Fox Sports Interactive Media, LLC

United States District Court, N.D. Illinois, Eastern Division

March 25, 2014


As Corrected March 28, 2014.

For Leveyfilm, Inc., administrator f/k/a Don Levey Studio, Inc., Plaintiff: Mark H. Barinholtz, LEAD ATTORNEY, Mark H. Barinholtz, P.C., Chicago, IL; Melinda H Schramm, Attorney-At-Law, Chicago, IL.

For Fox Sports Interactive Media, LLC, A Delaware limited company, Fox Sports Net Chicago Holdings, LLC, A Delaware limited company doing business as, Defendants: Steven P. Mandell, LEAD ATTORNEY, John David Fitzpatrick, Mandell Menkes LLC, Chicago, IL.

For Chicago Tribune Company, LLC, A Delaware limited company, Tribune Interactive, LLC., A Delaware limited company doing business as, Defendants: A Colin Wexler, LEAD ATTORNEY, Goldberg Kohn Ltd., Chicago, IL; Stephanie J. Harris, LEAD ATTORNEY, Goldberg Kohn Ltd, Chicago, IL.


Page 1099

Memorandum Opinion and Order

Honorable Thomas M. Durkin, United States District Judge.

Leveyfilm, Inc.--a corporate vehicle for the business of photographer Don Levey--alleges that Chicago Tribune Company, LLC, and Tribune Interactive, LLC (the " Tribune" ), used a photograph for which Leveyfilm held the copyright without Leveyfilm's permission in violation of the Copyright Act of 1976, 17 U.S.C. § 501, and the Digital Millennium Copyright Act, 17 U.S.C. § 1202. See R. 1. Specifically, in Count III Leveyfilm alleges that the Tribune removed information crediting the photo to Don Levey and replaced it with a credit to the Tribune in violation of 17 U.S.C. § § 1202(a) and 1202(b). R. 1 ¶ ¶ 44-54. The Tribune has moved to dismiss Count III for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 19. For the following reasons, the Tribune's motion is denied.


On January 26, 1986, the Chicago Bears defeated the New England Patriots to win Super Bowl XX. R. 1 ¶ 21. The month prior, in hopeful anticipation of that momentous victory, several Chicago Bears players participated in creation of a rap song and related video entitled the " Super Bowl Shuffle," which was produced by Dick Meyer. Id. ¶ 10-14. Meyer hired Levey to take still photographs of the players, and used a group photo that Levey took as the cover of the record album recording of the song. Id. The Super Bowl Shuffle became part of American (or at least Chicago's) popular culture lore.

Leveyfilm alleges that Levey granted a license to Meyer to use the photo on the cover of the album on condition that a credit line identifying Levey as the photographer would accompany the photo. Id. ¶ ¶ 16-19. Leveyfilm also alleges that Levey,

Page 1100

through Leveyfilm and its predecessor corporate entities, retained the copyright for the photo and sole authority to authorize use of the photo. Id. ¶ ¶ 16-19, 27-29. The back cover of the Super Bowl Shuffle album--the side that does not include the photo at issue here--includes the following two credit lines, among others: " Published by: Red Label Music Publishing, Inc., BMI © 1985; " and " Photography: Don Levey, Don Levey Studio." See R. 1-1 at 2-3.

In April 2013, Levey discovered that the Tribune had published the photo on its website. R. 1 ¶ 24. The Tribune did not include any of the credits from the back cover of the album. See R. 1-1 at 9. Instead, the Tribune included the following credit line under the photo: " (Tribune file photo)." Id. Levey argues that the Tribune violated the Digital Millennium Copyright Act, 17 U.S.C. § 1202(a), by including the " (Tribune file photo)" credit line under the photo, and violated 17 U.S.C. § 1202(b), by failing to include the " Photography: Don Levey, Don Levey Studio" credit line with the photo. See R. 1 ¶ ¶ 44-54.

Legal Standard

A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7,570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide " a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with " fair notice" of the claim and the basis for it. Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This " standard demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While " detailed factual allegations" are not required, " labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must " contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). " 'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Mann v. ...

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