Fioranelli v. CBS Broadcasting Inc.

232 F. Supp. 3d 531, 121 U.S.P.Q. 2d (BNA) 1767, 45 Media L. Rep. (BNA) 1344, 2017 U.S. Dist. LEXIS 38575, 2017 WL 1400119
CourtDistrict Court, S.D. New York
DecidedJanuary 19, 2017
Docket15-CV-952 (VSB)
StatusPublished
Cited by6 cases

This text of 232 F. Supp. 3d 531 (Fioranelli v. CBS Broadcasting Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fioranelli v. CBS Broadcasting Inc., 232 F. Supp. 3d 531, 121 U.S.P.Q. 2d (BNA) 1767, 45 Media L. Rep. (BNA) 1344, 2017 U.S. Dist. LEXIS 38575, 2017 WL 1400119 (S.D.N.Y. 2017).

Opinion

MEMORANDUM & ORDER

VERNON S. BRODERICK, United States District Judge:

Plaintiff Anthony Fioranelli brings this action against Defendants CBS Broadcasting, Inc. (“CBS”), BBC Worldwide Americas, Inc. (“BBC”), T3 Media, Inc. (“T3 Media”), Brook Lapping Productions Ltd., Testimony Films, RTW Productions, LLC, Paramount Picture Corporation, Morn-ingstar Entertainment, Inc., Creative Differences, LLC, Adams County Productions LLC, Telemaco SRL, JVCT Productions, Inc., Ipse Dixit, Inc., Firecracker Films, LLC, A & E Televisions Networks, LLC, John and Jane Does 1-10, John Doe Corporations 1-10, and John Doe Entities 1-10 (collectively “Defendants”)1 alleging: (1) copyright infringement (Count One), inducement to infringe federally registered copyrights (Count Two), Lanham Act unfair competition (Count Three), New York [534]*534and common law unfair competition (Count Four), New York statutory unfair competition (Count Five), New York General Business Law false advertising (Count Six), interference with contractual relations (Count Seven), interference with prospective advantage (Count Eight), unjust enrichment (Count Ten), willful intentional tort/laek of due diligence against all Defendants; and (2) breach of contract against Defendant CBS (Count Nine). Currently pending before me is Defendants’ motion to dismiss all counts. (Doc. 58.) Because I find that Plaintiff has adequately plead copyright infringement, Defendants’ motion to dismiss those claims is denied. In addition, because Plaintiff failed to adequately plead inducement to infringe copyright against Defendants Brook Lapping Productions Ltd., Testimony Films, RTW Productions, LLC, Paramount Picture Corporation, Morningstar Entertainment, Inc., Creative Differences, LLC, Adams County Productions LLC, Telemaco SRL, JVCT Productions, Inc., Ipse Dixit, Inc., Firecracker Films, LLC, and A & E Televisions Networks; Defendants’ motion to dismiss that claim against these defendants is granted. Defendants’ motion to dismiss Plaintiffs Lanham Act and state law claims is also granted, except I find Plaintiff has adequately pled his breach of contract claim against CBS. Therefore, Defendants’ motion, (Doc. 58), is GRANTED IN PART AND DENIED IN PART.

I. Factual Background2

Plaintiff Anthony Fioranelli is a professional photojournalist. (Compl. ¶ 2.)3 On September 11, 2001, Plaintiff was one of four reporters allowed to enter the World Trade Center site. (Id. ¶ 28.) Plaintiff took numerous photographs of the scene on that day and compiled them into a photographic work for which he registered copyrights in 2014. (Id. ¶ 28, Exs. 1, 2.) Specifically, Plaintiff copyrighted both his own commercially available documentary of the events, as well as raw footage of the photographs he took that day (“9/11 Material”). (Id. ¶ 29.)

On March 7, 2002, Plaintiff and CBS entered into a settlement agreement to resolve a law suit filed by Plaintiff in New York County Civil Court related to the 9/11 Material, and as part of that settlement Plaintiff provided a limited, nonexclusive license to CBS to use his work (“License Agreement”).4 (Id. ¶¶ 32, 56-57, Ex. B.) Specifically, the License Agreement provided, in relevant part, that

Fioranelli hereby grants to CBS, effective as of the date of this Agreement, a non-exclusive, irrevocable, perpetual worldwide right and license to use the Footage in all regularly-scheduled and [535]*535breaking news programming and all news magazine programs (such as, without limitation, 60 MINUTES and 48 HOURS), and in the advertising, publicity and promotions therefor, produced by CBS owned television stations and CBS News, in all media now known or hereafter developed, except as provided herein. It is understood and agreed by and between the parties that the right and license granted herein does not include authorization to use the Footage in CBS Entertainment Division programming, including docudramas, nor in CBS News documentary specials.... It is understood and agreed by and between the parties that the right and license granted herein does not include authorization to use the Footage in programs produced by CBS News Productions for third party clients; provided however, that in the event that despite commercially reasonable efforts to exclude the Footage from such programs, Footage is included in such programs, CBS shall pay Fioranelli (or his heirs, executors, assigns, agents, affiliated companies, successors, or successors in interest) $8000 per minute (or part thereof) for each minute used within the program, for rights in all media, now known or hereafter developed, in perpetuity. Within twenty (20) days of the initial broadcast of any program produced by CBS News Productions devoted to the subjects of the attacks on the World Trade Center or the events of September 11, 2001, CBS shall provide to Fioranelli a VHS time-coded copy of such program.

(Id. Ex. B ¶ 4(a), (b).)

Plaintiff contends that in or about 2005-2006, in violation of the License Agreement, CBS sublicensed some or all of the 9/11 Material to at least fifteen companies, who constitute the other defendants named in Plaintiffs complaint. (Id. ¶ 34.) Plaintiff also contends that the footage was inappropriately licensed to other entities, necessitating the inclusion of John Doe defendants in the Amended Complaint. (Id.) Plaintiff identifies specific examples of licensing of his footage which violated his copyright. (Id. ¶¶ 35-51.)

II. Procedural History

Plaintiff filed a complaint in this matter on February 9, 2015. (Doc. 1.) On May 1, 2015, Defendants CBS, BBC, T3 Media, MorningStar Entertainment, LLC, and A & E Television Networks, LLC filed a pre-motion letter with Judge Edgardo Ramos indicating their intention to file a motion to dismiss.5 (Doc. 21.) On that same day, Defendant Testimony Films also filed a pre-motion letter regarding its intention to file a motion to dismiss. (Doc. 22.) Then on May 5, 2015, Defendant Ipse Dixit, Inc. filed a letter regarding its proposed motion to dismiss. (Doc. 25.) On May 6, 2015, Plaintiff filed two letters, one responding to the letter of Defendant Testimony Films concerning its proposed motion to dismiss, (Does. 26), and the other to the letter of Defendants CBS, BBC, T3 Media, Morn-ingStar Entertainment, LLC, and A & E Television Networks, LLC .related to their proposed motion to dismiss, (Doc. 27). Plaintiff also filed a response to the letter of Defendant Ipse Dixit, Inc. concerning its proposed motion to dismiss on May 7, 2015. (Doc. 28.) That same day, I issued an endorsement scheduling a pre-motion conference to discuss all of the contemplated motions to dismiss. (Doc.'29.) I held that conference on June 17, 2015, and directed the parties to submit a proposed briefing schedule by June 19, 2015. (ECF Entry June 17, 2015.) On June 19, 2015, the parties submitted a proposed briefing [536]*536schedule, which called for Defendants to submit their motions to dismiss by July 31, 2015, Plaintiff to either amend his complaint or file opposition briefs by September 9, 2015, and Defendants to file their reply briefs, if any, by September 25, 2015. (Doc. 44.) I approved this schedule on June 22, 2015, (Doc. 45), and Defendants submitted their motions and accompanying papers on July 31, 2015, (Docs. 49-52).

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Bluebook (online)
232 F. Supp. 3d 531, 121 U.S.P.Q. 2d (BNA) 1767, 45 Media L. Rep. (BNA) 1344, 2017 U.S. Dist. LEXIS 38575, 2017 WL 1400119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fioranelli-v-cbs-broadcasting-inc-nysd-2017.