Monday, September 20, 2021

competitor's copying of photos doesn't inherently inflict competitive harm

McCleese v. Natorp’s, Inc., 2021 WL 2270511, No. 1:20-cv-118 (S.D. Ohio Jun. 3, 2021)

The parties compete in the market for custom landscape design services. “[I]n February 2010, Natorp’s began using approximately 24 of McCleese’s photos on its commercial website.” The parties disagree about how and whether they were authorized to do so. Each webpage that contained one of McCleese’s photos also contained Natorp’s own trademark and copyright symbols at the top and bottom. Natorp’s removed all of his photos from its website shortly after he complained, but the photos allegedly remained “online at various social media outlets including Natorp’s private website, Facebook, and Pinterest.” McCleese registered copyrights for his photos in 2019.

Along with copyright claims, McCleese asserted Lanham Act false advertising claims. But he failed to plead any injury to a commercial or sales interest. He did allege sadness, distress, and “profound grief” from Natorp’s copying of images of a particular landscape job, but the Lanham Act doesn’t cover psychological, emotional harm. The complaint didn’t allege how his position in the marketplace was harmed in any way; he even alleged that he “does not license his photos for any commercial purpose, does not sell copies of his photos, and his photos are unpublished.” Although the complaint alleged that defendants were unjustly enriched, “[a] plaintiff’s standing under the Lanham Act hinges on a commercial injury to the plaintiff, not merely a benefit to the defendant.” (Now do trademark standing.)

The same analysis applied to claims under Ohio’s statutory and common law of unfair competition.

DMCA §1202: McCleese didn’t plead facts sufficient to allege the existence of false CMI. It was not enough to allege that Natorp displayed its trademark and copyright symbols on the same webpage as McCleese’s photos. False CMI, according to the case law, must appear in the “body” or “area around” the infringed work.

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