Court dismisses case claiming copyright infringement by Chive Media

By John Sammon | Nov 16, 2018

LOS ANGELES — The U.S. District Court for the Central District of California dismissed a lawsuit in which a plaintiff claimed his photographs were used on Chive Media websites in violation of copyright laws.

The plaintiff, Elliot McGucken, sued Chive Media Group, an Austin, Texas-based digital media and e-commerce company in February 2018, alleging copyright infringement and violations of the Digital Millennium Copyright Act.

McGucken alleged the Chive Group copied images of photos posted on the plaintiff’s website and used them on the company's websites after altering some of the photos and erasing identifying watermarks. He asked for statutory damages and attorney fees.

In May of 2018 attorneys for Chive Media moved to dismiss the case which the court granted in part allowing leave for the plaintiff to amend his complaint, which McGucken did the following month.

On Aug. 14, the defendant moved again for dismissal of the case arguing that the plaintiff did not sufficiently plead the facts. In addition, the defendant claimed the plaintiff did not properly identify in the suit the date the alleged copyright infringement started and the dates the copyrights were registered.

McGucken argued the motion to dismiss was premature as more discovery surrounding the infringement was necessary.

A court brief said that a review of website URLs revealed that multiple alleged acts of infringement occurred prior to the registration of the photos by the plaintiff.

“By denying an award of statutory damages and attorney fees where infringement takes place before registration, Congress sought to provide copyright owners with an incentive to register their copyrights promptly and encourage potential infringers to check the Copyright Office database,” the court ruling, dated Nov. 8, said. “Because the plaintiff registered his copyright on February 20, 2018, he cannot recover statutory damages and attorney fees.”

One single accusation of photo infringement in June 2018 after registration constituted a continuation of a series of ongoing alleged infringements, the court document added.

The court said the plaintiff had failed to state the date of publication of photos despite a court order to do so and that the alleged infringements occurred before registration.

Even with the single photo post-registration, the court said the plaintiff had also failed to properly identify a first publication date.

Because the plaintiff failed to satisfy earlier requirements to amend defects in his plea, the court dismissed the plaintiff’s request for statutory damages and attorney fees without leave to amend.

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