Judge Mae D’Agostino
Elliott alleged the Gouverneur Tribune (Tribune) copied and distributed—absent permission—38 photographs taken between 2008 and 2012, that chief executive officer McClelland made the decision to reproduce the photos, and that both violated the Copyright Act. District court denied dismissal of Elliot’s complaint. She produced copyright registration certificates for the allegedly infringed photographs, and also provided their subject and publication date. Distinguishing Plunket v. Doyle the court held Elliott’s allegations satisfied Kelly v. L.L. Cool J’s four elements for a copyright infringement claim,and put the Tribune on notice of the claims against it. Further, citing Mattel Inc. v. Robarb’s and MGM Studios v. Grokster, the court found Elliott pleaded a plausible claim of contributory or vicarious infringement against McClelland in his personal capacity. She plausibly alleged that McClelland had supervisory ability and a direct financial interest in the photographs’ exploitation. Moreover, the fact that Elliott spoke with McClelland about her demand that the Tribune not reproduce her copyrighted images absent her permission suggested that McClelland was “a moving, active, conscious force behind [the Tribune's] infringement.
