Jorge v. Vimeo

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS RAFAEL JORGE, * * Plaintiff, * * Civil Action No. 23-30004-MGM v. * * VIMEO, * * Defendant. * MEMORANDUM AND ORDER RE: REPORT AND RECOMMENDATION ON DEFENDANT’S MOTION TO DISMISS (Dkt. Nos. 18 and 101) February 22, 2024 MASTROIANNI, U.S.D.J. On February 1, 2024, Magistrate Judge Katherine A. Robertson issued a Report and Recommendation which recommended that the court grant Defendant’s motion to dismiss Plaintiff’s pro se complaint. Judge Robertson explained: (1) Plaintiff has statutory standing to sue for copyright infringement because he is the “beneficial owner” of the subject film, as his distribution agreement with non-party Adler & Associates Entertainment, Inc. entitles him to a portion of the proceeds generated by the film’s distribution; (2) Defendant is not entitled to dismissal based on the Digital Millenium Copyright Act of 1998 safe harbor defenses; but (3) Plaintiff’s complaint fails to state a claim for vicarious copyright infringement against Defendant because he does not have a claim for direct copyright infringement against Adler & Associates, only for breach of contract. In particular, Judge Robertson explained that the distribution agreement gave Adler & Associates the right to distribute Plaintiff’s film to Vimeo.com, and “Plaintiff’s real dispute seems to be that Adler & Associates was not paying him properly in accordance with the terms of the agreement.” (Dkt. No. 101 at 11.) Under the distribution agreement, Judge Robertson explained, “Adler & Associates’ obligation to pay royalties is a covenant, not a condition,” which means “Plaintiff’s only recourse against Adler & Associates would be for breach of contract, not copyright infringement.” (Id. at 1213 (citing Photographic Illustrators Corp. v. Orgill, Inc., 370 F. Supp. 3d 232, 247 (D. Mass. 2019)).) Thus, because Plaintiff cannot hold Adler & Associates liable for direct copyright infringement based on the facts alleged, Plaintiff also cannot hold Defendant liable for vicarious copyright infringement. See, e.g., Resnick v. Copyright Clearance Ctr., Inc., 422 F. Supp. 2d 252, 258 (D. Mass. 2006) (“A defendant is not liable under a . . . vicarious theory of liability unless plaintiffs show direct infringement by a third party.”). On February 14, 2024, Plaintiff filed a timely objection to Judge Robertson’s Report and Recommendation. (Dkt. Nos. 103, 104.) The court agrees with the thorough and well-reasoned analysis presented in the Report and Recommendation. In particular, Plaintiff cannot bring a claim for vicarious copyright infringement against Vimeo without adequately alleging direct copyright infringement by a third-party—in this case, Adler & Associates. But, as Judge Robertson explained, the governing distribution agreement between Plaintiff and Adler & Associates created only a contractual covenant to pay a portion of royalties to Plaintiff; it did not create a condition which would render Adler & Associates’ use of the film unauthorized if the condition was not satisfied. See Photographic Illustrators, 370 F. Supp. 3d at 247-48 . Although Plaintiff filed an objection, he points to no contractual language which would support the contention that the distribution agreement created a condition regarding royalties, rather than a covenant, permitting a direct copyright infringement claim against Adler & Associates (or its agents). Accordingly, the court, upon de novo review, hereby ADOPTS the Report and Recommendation. As a result, Plaintiff’s complaint is DISMISSED for failure to state a claim upon which relief can be granted. This case shall be closed. It is So Ordered. _/s/ Mark G. Mastroianni________ MARK G. MASTROIANNI United States District Judge