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Copyright - Vicarious Infringement - Internet Library of Law and Court Decisions - Updated February 18, 2008

Court denies plaintiff's motion for summary judgment, seeking to hold operator of computer fairs liable for copyright infringement as a result of the sale of allegedly infringing software by various unaffiliated vendors at fairs operated by defendants. The court held that issues of fact precluded it from determining that the fair operator was liable, on theories of vicarious and contributory infringement, for such sales. As to the former, the court held that issues of fact existed both as to whether the copyright infringement at issue provided a direct financial benefit to the fair operators, or whether the defendants had the requisite ability to control the vendor selling the allegedly infringing merchandise, both necessary to establish vicarious infringement. The court held that while defendants did not need to share in the proceeds of the goods in question to establish the requisite financial benefit, the sale of the infringing materials had to be the "draw" which attracted customers to defendants' shows, and hence produced revenue for defendants in terms of entrance and vendor fees. Issues of fact precluded the court from reaching a determination on this issue. Such issues also existed as to whether defendants had the ability to exercise the requisite control over the vendors, given, in part, the difficulty in determining whether the vendors in question had authority to sell the products in question. The court also held that issues of fact precluded it from holding defendants liable on a theory of contributory infringement, as the record did not permit the court to determine whether defendants had the requisite knowledge that infringing activities were being carried on at the fair. This determination was based, in part, on evidence that the amount of infringing goods sold at the fair was a relatively small percentage of the overall number of goods sold.

Court granted defendant America Online's motion for summary judgment, and dismissed copyright infringement claims advanced by plaintiff author as a result of the posting of his works by defendant Robertson on a Usenet newsgroup made available by AOL to its users and others, and stored for a period of 14 days on AOL's servers.  AOL's involvement in these infringing activities was passive - it did not post nor direct the posting of the infringing material to the Usenet newsgroup in question.  Rather, the claims against it were predicated on its agreement, via peering agreements, to store the content of the Usenet newsgroup to which this offending post was made on its servers, and to transmit that content to, and make it available for viewing by, others.

The court held that AOL could not be liable for direct copyright infringement, because such passive involvement in the infringing activity at issue was insufficient to sustain a direct copyright infringement claim.  The court similarly rejected plaintiff's claim that AOL was liable on a theory of vicarious copyright infringement, because it had neither the right and ability to supervise Robertson's infringing activity, nor a direct financial interest therein.  The court held that AOL's ability to block access (over its systems) to the infringing materials in question did not give it the requisite ability to control the infringing activity.  Rather, because AOL could not prevent Robertson from acting, it did not have the requisite ability to control the infringing activities necessary to make AOL vicariously liable for the acts of copyright infringement Robertson initiated.  Nor did AOL derive the necessary direct financial benefit from this infringing activity.  The court held that this required AOL to receive a substantial or significant benefit from the posting of the Usenet material in question, which the evidence showed it did not receive.

The court did, however, hold that issues of fact precluded it from determining whether AOL could be liable for the acts at issue on a theory of contributory infringement.  Under such a theory, "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be liable as a 'contributory infringer.'"  Here the court held that issues of fact existed as to whether AOL was a contributory infringer, given the fact that plaintiff's attorneys had sent an e-mail to an AOL designated address that informed AOL of the infringing activity in question, after which AOL continued to allow the material in question to be posted on its servers, and made available to others.  The court held that issues of fact existed as to whether AOL, which it found had not received this e-mail, should nonetheless be charged with notice thereof given its designation of the e-mail address to which it was sent with the US Copyright Office.  In reaching this conclusion, the court held that "providing a service that allows for the automatic distribution of all Usenet postings, infringing and noninfringing, can constitute a material contribution [to the infringing activities and hence expose the ISP to liability for contributory infringement] when the ISP knows or should know of infringing activity on its system yet continues to aid in [its] accomplishment."

Nonetheless, the court dismissed this claim, holding that AOL was protected therefrom by operation of the safe harbor provisions of section 512(a) of the Digital Millennium Copyright Act.  This section protects a qualifying internet service provider from liability for copyright infringement by reason of the intermediate and transient storage of digital material (such as e-mails) in the course of transmitting, routing or providing connections thereto.  The court held that AOL's practice of storing the Usenet postings in question on its servers for a period of 14 days was an intermediate and transient storage for the purpose of the DMCA, and that it met the other requirements of the DMCA necessary to obtain the protection of this provision.  The court accordingly dismissed plaintiff's claim for contributory copyright infringement against AOL.

Affirming in part and reversing in part the court below, the Ninth Circuit grants so much of defendant America Online's motion for summary judgment which sought dismissal of claims of vicarious copyright infringement advanced by the plaintiff author.  These claims arose out of  the posting of plaintiff's works by defendant Robertson on a Usenet newsgroup made available by AOL to its users and others, and stored for a period of 14 days on AOL's servers.  AOL's involvement in these infringing activities was passive - it neither posted nor directed the posting of the infringing material to the Usenet newsgroup in question.  Rather, the claims against AOL were predicated on its commitment, via peering agreements, to store the content of the Usenet newsgroup to which this offending post was made on its servers, and to transmit that content to, and make it available for viewing by, others.

The Ninth Circuit affirmed the District Court's dismissal of plaintiff's vicarious copyright infringement claim, because plaintiff had failed to submit evidence that AOL "received a direct financial benefit from providing access to the infringing material" to its users.  Thus, "there [was] no evidence that indicate[d] that AOL customers either subscribed because of the availabil[ity of] infringing material or cancelled subscriptions because it was no longer available."

The Ninth Circuit also affirmed so much of the District Court's decision that denied AOL's motion to dismiss the contributory infringement claims plaintiff advanced.  "One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be liable as a 'contributory infringer.'"  Here the court held that issues of fact existed as to whether AOL had the requisite knowledge to be guilty of contributory infringement, given the fact that plaintiff's attorneys had sent an e-mail to an AOL designated DMCA notice address that informed AOL of the infringing activity in question, after which AOL continued to allow the material in question to be posted on its servers, and made available to others.  The court held that issues of fact existed as to whether AOL, which it found had not actually received this e-mail, should nonetheless be charged with notice thereof given its failure to continue to operate this e-mail address, which it had designated with the US Copyright Office as the address to which DMCA notices of copyright infringement were to be sent.    The Ninth Circuit held that this knowledge, coupled with AOL's storage of the infringing material on its servers, and provision of access thereto to AOL users, could render AOL liable for contributory copyright infringement.

The Ninth Circuit reversed the District Court's determination that AOL was protected from this potential liability for contributory copyright infringement by operation of the safe harbor provisions of section 512(a) of the Digital Millennium Copyright Act.  This section protects a qualifying internet service provider from liability for copyright infringement by reason of the intermediate and transient storage of digital material (such as e-mails) in the course of transmitting, routing or providing connections thereto.  The Ninth Circuit, affirming the District Court, held that AOL's practice of storing the Usenet postings in question on its servers for a period of 14 days constituted intermediate and transient storage in the course of transmitting or providing connection to digital material that qualified for protection if AOL met the requirements of the  safe harbor provisions of Section 512(a) of the DMCA.  However, reversing the District Court, the Ninth Circuit held that issues of fact existed as to whether AOL had reasonably implemented a polity to terminate repeat infringers, given, as stated above, that the AOL e-mail address to which DMCA notices of infringement were to be sent was not operational.  As implementation of such a policy was a prerequisite to entitlement to the protections of the DMCA, this branch of AOL's summary judgment motion was denied.

Finally, the District Court held that AOL could not be liable for direct copyright infringement, because AOL's passive involvement in the infringing activity at issue was insufficient to sustain a direct copyright infringement claim.  This claim was "abandoned" by Ellison on appeal.

Court grants defendants' motion for summary judgment, and dismisses claims brought by plaintiff, the owner of a copyright in the documentary "Manson", against defendant eBay arising out of the use by unaffiliated third parties of the eBay auction site to sell unauthorized copies of the Manson documentary. The Court held that plaintiff's claims for contributory and vicarious copyright infringement were barred by operation of Section 512(c) of the Digital Millennium Copyright Act. The DMCA offers service providers such as eBay protection from copyright infringement claims arising out of the storage of material on their web site provided, inter alia, (i) they do not have actual knowledge of the infringing activity or promptly upon gaining such knowledge move to prevent the use of their service to further it, (ii) do not receive a financial benefit directly attributable to infringing activity they have the ability to control, and (iii) expeditiously remove material from their service on receipt of an appropriate notice. The court held that eBay was entitled to protection under this section because (i) it did not have actual notice of the infringing activity, (ii) could not control it as the transactions were consummated off-line without eBay's involvement, and (iii) eBay had not received the requisite notice of infringing activity because, inter alia, the infringing articles were not appropriately specified in the notice sent by plaintiff. Plaintiff's claims for trademark infringement were mooted, held the Court, because of eBay's status as an innocent infringer, and its removal from its site of those advertisements plaintiff identified as improperly offering infringing copies of his movie for sale.

Defendant NAFED was guilty of direct copyright infringement because, without plaintiff's permission or authorization, NAFED obtained copies of plaintiff's copyrighted clip art and uploaded it onto computers hosting NAFED's website accesible to those using the web. Defendant Northwest, however, which hosted NAFED's site on its computers and made it available to those using the Internet, was neither liable for direct nor vicarious copyright infringement. Northwest only provided the means to copy plaintiff's work, much like the owner of a public copying machine used by a third party to copy protected material. It did not actually engage in the copying itself and accordingly, was not guilty of direct infringement. And because Northwest only received a flat fee from NAFED for its hosting activities that did not vary based on the use of NAFED's site, it did not profit from defendant NAFED's infringing activities, and hence was not guilty of vicarious infringement.

Granting defendants' motion for summary judgment, the District Court holds that neither Grokster Ltd. ("Grokster") nor StreamCast Networks Ltd. ("StreamCast") are liable, on theories of contributory or vicarious copyright infringement, for infringing plaintiffs' copyrights as a result of their distribution, respectively, of branded versions of Kazaa (Grokster) and Gnutella (StreamCast) software.  This software enables third party users to connect to peer-to-peer file sharing networks, over which they frequently share and download copyrighted materials without the consent of the owners of the copyrights therein.  The court held that defendants were not liable for contributory copyright infringement both because there were "substantial non-infringing uses" to which their software applications could be put, and because defendants were not involved in the third parties' use of their software after its distribution.  Similarly, the court held that defendants were not responsible for vicarious copyright infringement because they could not control the uses to which their software were put.  In making this conclusion, the court rejected plaintiffs' arguments that defendants should be held liable for vicarious infringement because, by altering the functionality of their software, defendants could prevent it from being used to infringe the copyrights of third parties.

Affirming the court below, the Ninth Circuit Court of Appeals holds that distributors of Kazaa and Morpheus are not liable for the infringing uses to which their peer-to-peer file sharing programs are put by third parties.  These third parties use defendants' software to make and distribute unauthorized copies of sound recordings and motion pictures in which plaintiffs hold copyrights.  Because, however, defendants' programs can also be used for 'substantial non-infringing uses,' such as the sharing of works either in the public domain, or with the permission of the holders of the copyrights therein, the Ninth Circuit held that defendant distributors are not liable as contributory infringers for such third party activities.  These claims fail because defendants did not have the requisite knowledge of the users' infringing activities at a time when they contributed to, or could take steps to prevent that infringement, given the decentralized nature of defendants' software.  Nor are the distributor defendants liable as vicarious infringers, as they did not have the requisite right and ability to supervise, or prevent, the infringing conduct of the users of their software.  The Ninth Circuit accordingly affirmed the District Court's grant of partial summary judgment to the distributor defendants, dismissing so much of the complaint which asserted copyright infringement claims arising out of those versions of defendants' software being distributed at the time of the District Court's decision.

After a bench trial, court holds that defendant Bitstream Inc. is neither guilty of contributory copyright infringement nor indirect trademark infringement as a result of its creation and distribution of a software program which permits the user to copy and incorporate into a document any typeface font, whether or not the owner of the copyright in such font has consented to such copying and use.  In an earlier decision, the court, on defendant’s summary judgment motion, dismissed claims of direct copyright and trademark infringement, as well as vicarious copyright infringement, arising out of defendant’s activities.  The court’s decision was grounded principally on the absence of admissible evidence that defendant’s software had been used by its licensees to copy typeface fonts in which plaintiffs held copyright.  The Court also based its decision on its holding that defendant Bitstream neither was aware of any such infringing activities, nor sought to increase the sales of its software by advertising that its products could be used for that purpose.

District Court dismisses claims charging Google with direct copyright infringement as a result both of its archiving Usenet postings that contain excerpts of plaintiff’s copyrighted works, and its display of excerpts of plaintiff’s copyrighted website in search results.  The District Court holds that Google has not engaged in the requisite volitional conduct necessary to be held guilty of direct copyright infringement because such copying is a by-product of the automated operation of Google’s search engine and related technologies.  As such, Google’s acts are akin to a user’s use of its ISP to transmit infringing material to a third party, which do not give rise to direct infringement claims against the ISP.  On appeal, the Third Circuit affirmed the dismissal of Parker’s direct infringement claims, on the grounds that Google’s archiving of infringing Usenet postings lacked the requisite “volitional conduct.”

Relying on Field v. Google, (D. Nevada 2006), the District Court also dismisses direct copyright infringement claims arising out of Google’s presentation to users of “archival” copies of plaintiff’s website in search results denominated “cache.”  The District Court holds that Section 512(b) of the Digital Millennium Copyright Act (“DMCA”), applicable to copyright infringement claims arising out of “system caching,” bars such claims here.

The District Court also dismissed vicarious and contributory copyright infringement claims arising out of Google’s archiving of Usenet posts created by third parties that themselves allegedly infringe plaintiff’s copyright, both because Google lacks the requisite knowledge of such inadequately identified infringing activity, and because it does not derive sufficient direct financial benefit therefrom.  This decision too was affirmed by the Third Circuit on appeal.

The District Court further dismissed defamation, invasion of privacy and negligence claims advanced by plaintiff arising both out of Google’s archiving of Usenet posts authored by third parties that allegedly defamed plaintiff, as well as out of Google’s storage and display in its “cache” of a website that purportedly defamed plaintiff.  Such claims are barred by the immunity afforded Google by Section 230 of the Communications Decency Act (“CDA”), a decision affirmed on appeal.

Finally, the District Court dismissed Lanham Act claims brought against Google as a result of its alleged republication of a website operated by a third party titled “the Official Roy Gordon FAQ.”  The District Court held that the third party was not violating the Lanham Act both because it was not using a mark in commerce as it was not selling anything on its site, and because consumers were not likely to be confused as to the origin of the site, given the criticism of plaintiff found thereon.  The Lanham Act claims against Google also failed because it was not a “moving force” or “active participant” in the creation of this site, or the alleged use thereon of plaintiff’s ‘mark.’  The Third Circuit affirmed the dismissal of the Lanham Act claims because of the absence of a likelihood of consumer confusion.  The Court also affirmed the dismissal of plaintiff’s trade disparagement claims because the statements at issue on the third party website were not made in the context of commercial advertising.

It should be noted that the plaintiff appeared pro se.  In addition, the Third Circuit’s opinion was denoted “Not Precedential.”

On a motion for a preliminary injunction, the Court holds plaintiff likely to succeed on copyright infringement claims arising out of defendant Google's display of "thumbnail" images of plaintiff's copyrighted photographs in response to users' searches for images matching their description.  The Court held that it is likely to find that such a display is not a fair use of plaintiff's works, given, inter alia, its commercial nature, and the fact that such use likely interferes with a market for plaintiff's photographs.

The Court further holds that plaintiff is not likely to prevail on copyright infringement claims arising out of Google's use of "in-line links" that incorporate into Google's own web pages the web pages of third parties that themselves contain infringing copies of plaintiff's copyrighted photographs.  These "in-line links" allow users who are interested in a thumbnail image presented in Google's search results to view the actual image on the web page on which Google found it.  The Court held that it is not likely to find that Google directly infringed plaintiff's copyrights by such conduct, because, adopting the "server test," it is the third parties who created the websites that contain the infringing images, and not Google, that are displaying and/or distributing them in violation of plaintiff's copyright.

The Court further held that it was not likely to find Google guilty of contributory or vicarious copyright infringement as a result of such third party displays, notwithstanding any advertising Google may deliver to the web pages that contain such images, or revenue Google may derive therefrom.  Google is not guilty of vicarious infringement because it does not possess the requisite ability to control the content of such third party sites, or compel the third parties that operate them to remove infringing content found thereon.  Google's ability to remove such websites from search engine results does not constitute such control.  Nor, the Court stated, was it likely to hold that Google encourages or assists such infringement sufficiently to be guilty of contributory infringement.  The Court held that the record before it was insufficient to establish that the third parties displaying plaintiff's content were motivated by the revenue they might derive from the display of Google ads or that such revenue contributed to their posting of the infringing images in question.

The Ninth Circuit holds that Google’s creation and display in search results of lower resolution ‘thumbnail’ copies of infringing images found on third party websites for the purpose of aiding the public in locating such images is a fair use that does not infringe the rights of the holder of the copyright therein.  In reaching this result, the court relied largely on the transformative nature of the thumbnails Google created, which, by facilitating the public’s ability to search the web for images, serve a different purpose than the original images, which are designed to entertain.  The Ninth Circuit accordingly reversed so much of the decision of the District Court which had enjoined Google from displaying such thumbnails in its search results. 

The Ninth Circuit further held that framing infringing images found on third party web sites via “in-line linking” to such sites does not directly infringe the display or distribution rights of the holder of the copyrights in such images.  As part of the process by which it provides results to those who search for images, Google presents a ‘framed page,’ the bottom half of which comes directly from the third party web site on which the image is found, and contains that image.  For the purpose of direct infringement, the Ninth Circuit endorsed the “server test” applied by the District Court.  Under this test, a party infringes the display rights of a copyright holder in an image when it stores a copy of that image on its own server, and delivers it to a third party.  When a party merely provides a link to a third party website on which such infringing material can be found, it is that third party web site, and not the party providing the link, that directly infringes the display rights of the copyright holder by causing that infringing image to be displayed on a user’s computer screen.  Applying this test, Google did not directly infringe by providing “in-line links” to third party websites that themselves contained infringing images.

Reversing the District Court, the Ninth Circuit held, however, that Google is potentially liable on a theory of contributory infringement for infringing plaintiff’s copyrights as a result of its provision of such in-line links.  According to the Court, “Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works, and failed to take such steps.”  Issues of fact as to the adequacy of notices sent by Perfect 10 alerting Google that it was in fact providing links to third party web sites that contained infringing images, of Google’s response thereto, and of Google’s ability to remove such infringing sites from its search results, mandated denial of plaintiff’s motion for summary judgment.  Also left for the District Court to resolve on remand was whether the Digital Millennium Copyright Act (“DMCA”) immunized Google from liability for such contributory infringement, an issue the District Court had not addressed because it had determined that Google was not likely to be found liable for contributory infringement.

Finally, the Ninth Circuit held that Perfect 10 was unlikely to prevail on vicarious infringement claims arising out of Google’s provision of in-line links to third party web sites that contained infringing images.  The Court held that Perfect 10 had not demonstrated that Google had the ability to control such third party websites, and compel them to remove infringing images found on their sites, a prerequisite to a finding of vicarious infringement.

The Ninth Circuit resolved the copyright infringement claims Perfect 10 asserted against Amazon.com in a similar fashion.  These claims arose out of the provision by Amazon.com to users of its site of Google search results, “framed” via in-line links. By this arrangement, the Amazon user received the same search result as the Google user.  Accordingly, the Court reached the same conclusions concerning Amazon’s conduct as it did concerning Google’s.  All claims save that which sought to hold Amazon.com liable on a theory of contributory infringement were held likely to fail.  The contributory infringement claim, arising out of Amazon’s provision of in-line links to third party sites that contained infringing images, was remanded for further consideration by the District Court.

Court issues preliminary injunction against Cybernet Ventures, which operates an Age Verification Service, based on the use by web sites operated by third parties of various images in which plaintiff held the copyright, or featuring a model who had assigned her right of publicity to plaintiff. 

Cybernet Ventures operates the Age Verification Service "Adult Check."  Participating web sites put a script on their site which direct first time users to Cybernet, who sells them access to the Adult Check family of sites.  The user is thereafter free to visit Adult Check sites for a set period of time.  The fees generated by this user are paid to Cybernet, who splits them with the web site which sent the user to Cybernet.  To assist the user in finding Adult Check sites to his liking, Cybernet provides both a series of links as well as a search engine.  It also advertises its network. 

Cybernet takes an active interest in the content of Adult Check sites, employing a staff of 12 to review the site both before it is admitted to the Adult Check family, and periodically thereafter.  The content of the site is reviewed by Cybernet to prevent the inclusion of prohibited images.  Cybernet also provides comment on the site's layout.  The images on each site, however, are not provided by Cybernet.  Instead, each site is run by a third party, who is responsible for locating the images, arranging to have the site hosted, and advertising the site.

Perfect 10, which holds the copyright in a number of images of nude women made available to the public both on its web site and in a magazine, brought this suit, charging that web sites in the Adult Check family contained over 10,000 images in which Perfect 10 held the copyright. 

The court determined that Perfect 10 was likely to prevail on its claims contributory and vicarious copyright infringement against Cybernet, as well on its claims of unfair competition under Cal. Bus. and Professions Code Section 17200.  The court held that Perfect 10 was likely to prevail on its contributory infringement claim because Cybernet was likely to be held to have the requisite notice of the infringing activities at issue, and to have materially contributed to this infringement by its operation of the Age Verification Service, and particular its collection of fees for, and advertising of the web sites in question.

The court further held that Perfect 10 was likely to prevail on its vicarious infringement claim, because Cybernet had the ability to control the web sites, as evidenced by the review of its content it conducted, and received a direct financial benefit from the presence on these web sites of the infringing images.  Lastly, the court held that Perfect 10 was likely to prevail on its unfair competition claim, because Cybernet was likely to be held to have aided and abetted a violation of various models' right to publicity, again by virtue of its knowledge of infringement, and contributed thereto by virtue of its operation of the AVS system.

The court further held that Cybernet was unlikely to be able to avoid this liability under the safe harbor provisions of the Digital Millennium Copyright Act, because the court was likely to hold both that the DMCA policy Cybernet adopted failed to comply with the DMCA, and that Cybernet failed to reasonably implement such a policy, or terminate repeat infringers.  Cybernet was also unlikely to be able to seek the protections of the DMCA because it received a financial benefit directly attributable to infringing activity it had the right and ability to control.

The court accordingly issued a preliminary injunction, which prohibited Cybernet from utilizing or linking to the images in question.  The injunction further obligated Cybernet to stop linking to sites containing the images in question where Cybernet had either notice thereof, or knew or should have known of the presence of the images, under circumstances specified in the injunction.  The injunction also obligated Cybernet to undertake reviews both of sites seeking to become members of the Adult Check network, and of designated existing sites, to ascertain whether they were using any of the images at issue, and to bar such new sites from entering the network without proper rights documentation.  The scope of this injunction is discussed in greater depth in the accompanying "in depth" analysis of this decision.

Webbworld, which operated a subscription website on which it offered users access to unlicensed copyrighted images originally appearing in publication owned by plaintiff, held liable for copyright infringement. It was no defense that the infringing images were originally uploaded by third-parties onto the adult newsgroups from which Webbworld drew its content. Court further held Webbworld's principals liable for vicarious copyright infringement as a result of this activity, due to their financial interest in and control over the operations of Webbworld's site

Quick Hits

On the parties’ cross-motions for summary judgment, the Court finds the corporate defendants guilty of copyright infringement as a result of their unauthorized use of two of plaintiff’s copyrighted photographs in advertisements for their businesses. 

The Court further held that defendant Andrew Vilenchik, the sole board member and shareholder of defendant Vilana Financial, could not be held vicariously liable for defendant’s copyright infringement, because he did not have or derive a sufficiently direct financial interest from the use of plaintiff’s photographs.

The Court granted plaintiff summary judgment, dismissing defendants’ claim that his use of defendants’ trademark in the path of his site’s domain name violated the Anticybersquatting Consumer Protection Act.  Defendants’ claim failed both because they failed to submit sufficient evidence that plaintiff had a bad faith intent to profit from this use of the mark, and because use of the mark in the path of the domain name does not constitute actionable use of the mark in a domain name

The Court also dismissed trademark infringement claims brought by defendants as a result of plaintiff’s use of their trademark in a website that purportedly disparaged defendants as a result of their use of the photographs at issue, and in the meta tags of that site.  The court held defendants failed to establish the requisite likelihood of consumer confusion sufficient to sustain such a claim, given that the parties were not competitors – plaintiff was a photographer, and defendants sold real estate and mortgage services – and plaintiff’s website was highly critical of defendants.  In reaching this result the court noted that “a defendant’s use of a trademark in metatags in a descriptive manner can constitute a non-infringing fair use.”

Finally, the Court left for trial defendants’ remaining claims, which included deceptive trade practices, interference with contractual and business relationships, and misappropriation of name and likeness, all of which arose out of the disparaging remarks posted on plaintiff’s website about the defendants.  This site included a photograph of defendant Vilenchik.  Because issues of fact existed as to the truth of these statements, the court reserved decision on these claims until trial.

It should be noted that plaintiff ultimately prevailed at trial, was awarded approximately $20,000 on his copyright infringement claims, and that defendants’ remaining claims were dismissed.

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