Another Section 512(f) Case Fails–ISE v. Longarzo
This ruling doesn’t break a lot of new doctrinal ground. Another 512(f) case fails–nothing new. I’m blogging mostly for completeness and as a follow up to my May post remarking that a 512(f) case survived a motion to dismiss. At the time, I said, “If you’re a 512(f) enthusiast, you know better than to get too excited about this ruling. The math still strongly indicates ISE will lose on 512(f).” On summary judgment, the case reached its expected denouement.
I previously summarized the case:
the litigants dispute ownership over a TV show, “The Weekend in Vegas.” ISE posted the video to Amazon. A defendant asked Amazon to remove it, which Amazon did. Among other claims, ISE sued the defendants for violating 512(f), saying the requests to Amazon were improper takedown demands.
This opinion provides some details about the so-called takedown notices. The first notice read “Use of my name and/or image/likeness is an infringement of my right of privacy and right of publicity, as these rights have not been granted by me.” The opinion just says it was “submitted to Amazon.” The second notice was emailed to an Amazon employee and said “[Mr. Civillico’s] image, likeness and performance are being improperly used by a producer, Gary Harmon, who has no assets but intentionally breached an agreement, failed to pay contractually owed amounts, even took money from [Mr. Civillico] to pay for certain expenses with a promised quick reimbursement . . . and is brazenly using these episodes to try to profit on my client’s work.”
The 512(f) claim fails for three reasons. First, the defendants’ takedown notices weren’t based on copyright: “By requesting that Amazon removes the Series based upon infringement of Mr. Civillico’s rights of publicity and privacy, Mr. Longarzo has not sent a DMCA takedown notice.” Second, the takedown notice wasn’t sent to Amazon’s designated agents for notice of copyright infringement, and misdirected outreach to the wrong contacts cannot support a 512(f) claim. Third, the defendants easily defeat 512(f)’s scienter requirement simply by testifying otherwise (“Both Mr. Civillico and Mr. Longarzo have submitted sworn testimony indicating that they had subjective, good faith beliefs that they were not knowingly or intentionally misrepresenting any rights to Amazon.”)
While the outcome isn’t surprising, it’s hard to cheer this ruling. First, the court interprets 512(f)’s requirements quite strictly. Unless the defendant properly tenders a 512(c)(3) notice, 512(f) doesn’t apply even if the service removed the content. There might be other legal remedies for the non-copyright-based claims, but those are also doubtful. Second, while 512(f) cases routinely fail for lack of scienter, the court allowed the case to survive the motion to dismiss based on thin allegations, only to reject the scienter on summary judgment. I understand the value of letting cases mature to summary judgment, but here it seems like the allegations were thin enough that the court could have spared both parties the extra litigation costs.
Case citation: ISE Entertainment Corp. v. Longarzo, No. CV 17-9132-MWF (JCx) (C.D. Cal. Dec. 11, 2018)