Photographer Keith Viglione accused Newburyport.com of putting Viglione’s photograph of the Prudential Tower in Boston with certain windows lit up to spell out “GO PATS,” as well as other Viglione images, on Newburyport.com’s website in violation of Viglione’s copyrights in the photos. The infringement apparently arose when Newburyport.com shared photos that Viglione had posted to Facebook using the “public share” setting, making the photographs publicly accessible. Newburyport.com asserts that Facebooks terms of service expressly permits such sharing, and provides for privacy settings that would prevent such access by the general public. By posting under the public setting, Newburyport.com asserts that Viglione rganted Facebook and its users a license to share the photos on the app.
Judge Stearns granted Newburyport.com’s motion to dismiss with respect to one of the photographs, finding that Viglione was aware of the sharing of this photo by Newburyport.com more than three years prior to the filing of the complaint (evidenced by Viglione’s thanking Newburyport.com for sharing the photo at the time) and thus barred by the statute of limitations. He denied Newburyport.com’s motion to dismiss based on the license defense, noting that the complaint suggested that Newburyport.com did not merely share the photographs, but that it actually repurposed and reposted them for its own commercial gain. As such, the pleadings did not conclusively establish the existence of a license.
Judge Stearns granted Viglione’s motion to dismiss Newburyport.com’s counterclaim for costs and attorneys’ fees pursuant to 17 U.S.C. § 505, finding that the fee-shifting provision of the Copyright Act provided a remedy but not a stand-alone cause of action. The dismissal was without prejudice to seek fees and costs at the conclusion of the litigation, should Newburyport.com win.
Judge Stearns further denied counterclaims for HHH, finding that each was (or could be) before the court already as an affirmative defense and were therefore unnecessary as counterclaims. Finally he dismissed counterclaims for unfair competition under c. 93A and under common law. These claims were based on allegations that Viglione posted the photographs on Facebook using its public share function to “bait” entities into sharing them and therefore infringing the copyrights. Judge Stearns found that the parties were not engaged in trade or commerce, as required by 93A, because the filing of litigation does not meet that definition, and the counterclaims lacked factual allegations that Viglione was misusing legal process that could rise to a violation of the statute.
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