FORT LAUDERDALE, Fla. – In a case which underlines the importance of rights-holders properly structuring their legal relationships with image brokers and copyright enforcement services they employ, a website which published racy photos of the First Lady is asking the court to dismiss a copyright complaint filed against it by a photo licensing agency.
In response to a copyright complaint filed earlier this month by Lickerish Ltd., a “high quality photographic syndication company,” Z Lifestyle LLC, the operators of WorldLifestyle.com, asserted in a motion to dismiss that Lickerish has no standing to sue, as it is not the copyright holder of the images in question – images which include several old photos of a scantily-clad Melania Trump.
In its complaint filed May 2, Lickerish alleged that Z Lifestyle “copied seven of Lickerish’s copyrighted Works from the internet in order to advertise, market and promote its business activities.”
“Lifestyle committed the violations alleged in connection with Z Lifestyle’s business for purposes of advertising and promoting sales to the public in the course and scope of Z Lifestyle’s business,” Lickerish stated in the complaint, adding that Lickerish “registered the Maggie Work with the Register of Copyrights on August 6, 2015… and registered the Melania Works with the Register of Copyrights on April 18, 2017.”
“At all relevant times Lickerish was the owner of the copyrighted Works at issue in this case,” Lickerish stated in its complaint.
As noted in Z Lifestyle’s motion to dismiss the complaint, however, the certificates of copyright registration attached as exhibits to the Lickerish complaint identify photographers Dimitry Loiseau and Antoine Verglas as the copyright holders, not Lickerish.
“Lickerish does not own the copyrights asserted – the first element of copyright infringement – and does not have standing to sue,” Z Lifestyle stated in its motion to dismiss. “In the Complaint, Lickerish alleges copyright infringement of certain photographs. The plain text of the attached Copyright Registrations, however, state that the respective photographers – not Lickerish – are the owners of the copyright in the photographs. Lickerish has not claimed any other standing to enforce the copyrights, and as such, the Complaint must be dismissed.”
In its motion, Z Lifestyle conceded that Lickerish is “listed as the Rights and Permissions contact,” but also reiterated the company is not listed as a “claimant or other rights holder.”
Quoting from the case Saregama India Ltd. v. Mosley, Z Lifestyle noted that to “make out a prima facie case of copyright infringement, a plaintiff must show that (1) it owns a valid copyright in the [work] and (2) defendants copied protected elements from the [work].”
“Lickerish pleads ownership, but the Certificates of Registration govern,” Lifestyle Z asserted in its motion to dismiss. “In the text of its Complaint, Lickerish asserts that ‘[a]t all relevant times Lickerish was the owner of the copyrighted Works at issue in this case’ and that ‘Lickerish owns valid copyrights in the Works at issue in this case’… However, ‘when the exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern.’”
The upshot of these facts, according to Z Lifestyle is that “(a)t best, the Certificates support Lickerish’s assertion that it is a ‘syndication company that provides images to’ third parties and that it serves as a licensing agent.”
“Licensing agents, however, have no ownership rights or ability to enforce the copyright,” Z Lifestyle argued in its motion. “For this reason, copyright ‘licensing agents’ may not bring suit under the Copyright Act. Similarly, a nonexclusive licensee may not bring suit under the Copyright Act.”
Lickerish has not yet responded to Z Lifestyle’s motion to dismiss, which was filed on May 29.
