The Southern District of New York granted plaintiff Deborah Feingold’s (“Feingold”) summary judgment motion, finding that the online marketplace RageOn had publicly displayed two of Feingold’s works without her consent. Feingold is a professional photographer whose works have appeared in celebrity magazines. At issue were two photographs, one featuring the singer Madonna holding a red lollipop against her tongue featured in an unpublished but registered book, Bright Moments Photographs + Philosophies (“Bright Moments”), authored by Feingold. RageOn disputed that Feingold held a valid copyright in the Madonna image because they alleged the Madonna image was published in a magazine and/or a Madonna fan blog prior to registration of Bright Moments and thus is outside the scope of the Bright Moments copyright The district court found that RageOn had produced only conclusory evidence regarding their publication allegations and that the Madonna image was not published prior to registration of Bright Moments and Feingold held a valid copyright in the Madonna image. The other image, originally published in a 1989 issue of Rolling Stone, portrayed the actor Keanu Reeves.  RageOn sold merchandise featuring these two images.

The Southern District of New York affirmed the validity of Feingold’s copyrights and held that the similarities between the original photos and the images were so great as to constitute clear evidence of copying. The district court dismissed RageOn's argument that the Keanu Reeves image used on the t-shirts was a “mirror” of the original photograph, noting that “this type of manipulation can be accomplished in a matter of seconds by anyone with a basic image-editing application.” 

The district court also dismissed the RageOn’s argument that it was entitled to immunity under the safe harbor provision of the Digital Millennium Copyright Act (DMCA). The district court denied RageOn’s defense for two reasons. First, as an online marketplace, RageOn “received a financial benefit directly attributable to the infringing activity . . . [and] had the right and ability to control that activity.” Second, RageOn did not remove images of the offending articles of clothing for at least 18 days after Feingold’s counsel sent a takedown letter pursuant to the DMCA. The district court concluded that this delay did not qualify as an “expeditious response,” as required under the DMCA. The parties later settled.

‍