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Photo Infringement case brief – Heavey vs. Netflix

Posted by Steve Vondran | Nov 04, 2018 | 0 Comments

Attorney Steve Photo Infringement Case Briefs – The Netflix case.  4:18-cv-00121-BMM.

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Introduction

Here is the case at issue, recently filed in Montana Federal District Court.

Heavey v. Netflix, Inc. Brian Morris, presiding Date filed: 09/13/2018 Date of last filing: 10/18/2018

Here is a brief overview of the legal issues.

Attorneys

THE LAW OFFICE OF DAVID C. DEAL, PLC + FAURE HOLDEN ATTORNEYS AT LAW PC for the Plaintiff

Sample allegations

Here are some of the allegations in the copyright infringement complaint.

‘Sean is an experienced, award-winning commercial photographer specializing in landscape, panoramic, portrait, and nature photography regularly works for a variety of advertising and editorial clients throughout the world, included but not limited to: Apple, Random House, Time Books, USA Today, National Geographic, The Daily Mail, National Public Radio, and The Nature Conservancy.

On July 10, 2010, Sean captured a photograph near Hinsdale, Valley County, Montana which he titled “The Mothership.”

Sean captured “The Mothership” using great technical skill and careful timing, as well as significant time and energy.

Sean tracked and followed the storm depicted in “The Mothership” for many hours, beginning as it crossed the Montana/Canada border heading South. Sean used his technical expertise to digitally combine four independent, vertically-framed panoramic photographs to create “The Mothership.” The four photographs combined to create “The Mothership” were the result of numerous sequences of experimentation by Sean with various framing, exposure, shutter speed, and movement options.

On or about October 20, 2010, Sean submitted “The Mothership” photograph to National Geographic for consideration in the National Geographic Photography Contest 2010. On November 19, 2010, The Boston Globe, with permission from National Geographic, posted “The Mothership” photograph to the following URL: www.boston.com/bigpicture/2010/11national geographics photograp.html (“Boston Globe Post”).

The Boston Globe Post was titled “The Big Picture: News Stories in Photographs” and featured a selection of entries to the National Geographic Photography Contest 2010. The Boston Globe Post included the text, “Photo and caption by Sean Heavey” immediately below “The Mothership” photograph. Plaintiff registered “The Mothership” photograph with the United States Copyright Office on November 26, 2010 (Registration No.: VA 1-759-531).

On July 31, 2010. Plaintiff posted “The Mothership” photograph to the following URL: www.facebook.com/photo.php?fbid=139134222784419&set=a.140851502612691 &type=3&theater (Last visited August 29, 2018) (“Heavey Post”).

The Heavey Post included Plaintiff's signature, “Sean R. Heavey,” attached to the bottom right corner of “The Mothership” photograph.

Defendant is a media services provider, specializing in subscription based online streaming through its commercial website www.netflix.com. Defendant has 130 million subscribers in over 190 countries worldwide. Defendant produces original content, including the series, Things, the seven-episode “after-show” Beyond Stranger Things, and the movie, How it Ends.

Defendant owns, operates, and is solely responsible for the “original” content available on www.netflix.com. On or about January 1, 2017, Defendant copied and used “The Mothership” photograph in the Netflix original series Beyond Stranger Things.”

The Complaint alleged Copyright Infringement

The complaint alleged:

“Netflix, without Sean's permission or consent, copied and distributed “The Mothership” by using it in Netflix originals, Stranger Things, Beyond Stranger Things, and How It Ends. Defendant violated Sean's exclusive rights of reproduction and distribution. Defendant's actions constitute infringement of Sean's copyright and exclusive rights under copyright. Netflix's act of infringement was willful and intentional, in disregard of and with indifference to Sean's rights. Netflix, without Sean's permission or consent, created a derivative work from “The Mothership” by incorporating it into the content of Netflix “originals,” Stranger Things, Beyond Stranger Things, and How It Ends. As a result of Netflix's infringement of Sean's copyright and exclusive rights under copyright, Sean has suffered damages. Sean is entitled to actual or statutory damages, including any profits realized by Netflix attributable to the infringement, pursuant to 17 U.S.C. § 504-5.”

Removal of Copyright Management Information – Section 1202 Claims

The complaint also alleged a “copyright 1202 claim”:

“Netflix, without Sean's permission or consent, knowingly and with the intent to conceal infringement, intentionally removed the copyright management information from “The Mothership” before using it in Stranger Things, Beyond Stranger Things, and How It Ends.

In doing so, Netflix violated 17 U.S.C. § 1202. As a result of Netflix's actions, Sean suffered damages. Sean is entitled to actual damages or statutory damages pursuant to 17 U.S.C. § 1203(c). Sean is entitled to his attorneys' fees and costs pursuant to 17 U.S.C. § 1203(b)(5).

Section 1202 per the United States Copyright Office

According to the U.S.C.O. there are serious penalties for section 1201 or 1202 claims:

204. Criminal offenses and penalties

(a) In General.—Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain—

(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

(b) Limitation for Nonprofit Library, Archives, Educational Institution, or Public Broadcasting Entity.—Subsection (a) shall not apply to a nonprofit library, archives, educational institution, or public broadcasting entity (as defined under section 118(f)).

(c) Statute of Limitations.—No criminal proceeding shall be brought under this section unless such proceeding is commenced within five years after the cause of action arose.

Prayer for Relief

Here are the remedies that Plaintiff is seeking in this case

‘PRAYER FOR RELIEF WHEREFORE,

Sean prays for judgment in its favor and against Netflix as follows:

finding that Netflix's unauthorized conduct violated Sean's rights under the Federal Copyright Act;

immediately and permanently enjoining Netflix, its officers, directors, agents, servants, employees, representatives, attorneys, related companies,

successors, assigns, and all others in active concert or participation with Netflix, from copying and republishing “The Mothership” without consent or otherwise infringing Sean's copyright or other rights in any manner;

awarding Sean all damages he suffered as a result of Netflix's copyright infringement to the fullest extent allowed by law, including:

a. ordering Netflix to account to Sean for all gains, profits, and advantages derived by Netflix by its infringement of Sean's copyright or such damages as are proper;

b. the maximum allowable statutory damages for each violation because Netflix intentionally infringed Sean's copyright; and

c. all of Sean's actual and/or statutory damages for Netflix's copyright infringement.

for an award of all Sean's attorneys' fees and costs to the fullest extent allowed by law, including pursuant to 17 U.S.C. § 505, 17 U.S.C. § 1203(b)(3), and § 1203(b)(5);

for all pre- and post-judgment interest to the fullest extent allowed by law; and 64. for all other relief this Court deems just, equitable, and proper.”

Contact a Online Copyright Infringement Law Firm

Our boutique California copyright infringement law firm can help with cases of photo, software, video, font, jewelry, e-book,  fabric design and other cases of online infringement.  In many cases representing Plaintiffs in lost license recovery cases, we may be able to accept the case on a contingency fee basis – meaning if we do not recover you do not pay us anything.  Call us at (877) 276-5084.

About the Author

Steve Vondran

Welcome to the SHORT BIO page for Attorney Steve®  (Yes, I was able to get a trademark for Attorney Steve®) Click here to go to a more COMPLETE BIO. AZ Bar Lic. #025911 CA. Bar Lic. #232337 Introduction I have done a lot of things in my 15 years of law practice and in my life in general.  ...

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