Photographer’s copyright claim against officer of company over photos on website moves forward

Plaintiff, a professional photographer, sued defendant company and an individual who was its “registered agent and … officer, director, manager, and/or other genre of principal” for copyright infringement over two photographs that appeared on the defendant company’s website. The infringement claims against the individual defendant included one for vicarious infringement.

The individual defendant moved to dismiss the vicarious infringement claim. The court denied the motion.

One “infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). “In order to establish vicarious liability, a copyright owner must demonstrate that the entity to be held so liable: (1) possessed the right and ability to supervise the infringing activity; and (2) possessed an obvious and direct financial interest in the exploited copyrighted materials.” Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 513 (4th Cir. 2002).

In this case, plaintiff alleged that the individual defendant controlled nearly all decisions of the company and was the dominant influence in the company. In addition, plaintiff alleged that the individual defendant “had the right and ability to supervise and/or control the infringing conduct of the company, and/or stop the infringements once they began.” Finally, plaintiff alleged that the individual defendant had an obvious and direct financial interest in the infringing activities of the company since he was an officer, director, manager or other principal of/for the company. As a principal of the company, the individual defendant’s financial interests were intertwined with the company’s. Therefore, the individual defendant had a direct and obvious financial interest in the company.

So the court concluded that plaintiff had presented sufficient facts with regard to each element of the vicarious liability claim.

Oppenheimer v. Morgan, 2019 WL 2617080 (W.D.N.C., June 26, 2019)