In action brought by photographer and subject alleging unauthorized use of photo on recording artist Jeremih’s album cover, district court denies motion to dismiss contributory and vicarious copyright infringement claims, holding artist acted in concert with record company defendants and benefited financially from marketing of album, and also denied motion to dismiss right of publicity claim.

Alexander Flemming, a Denmark resident, is a photographer who took a photo of Louise Rams, also from Denmark, with her index finger over her closed mouth in a “shh, don’t tell” gesture. Flemming and Rams sued Def Jam Recordings Inc., Universal Music Group Recordings Inc. and Jeremih Felton, a popular recording artist, producer and entertainer known professionally as “Jeremih,” alleging they used Flemming’s photograph of Rams on the cover of Jeremih’s album “Don’t Tell ’Em” without authorization. Jeremih moved to dismiss plaintiffs’ secondary copyright infringement claims against him and also joined UMG’s motion to dismiss the right of publicity claim. The district court denied both motions.

The district court first denied Jeremih’s motion to dismiss the contributory copyright infringement claim against him. Under the Second Circuit’s decision in Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., in order to state a claim for contributory infringement, a plaintiff must allege facts that a defendant “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another . . . .” The district court found that plaintiffs had plausibly alleged that Jeremih, an artist whose work was distributed by UMG under the Def Jam label, “would have reason to know of the infringing use of the [photograph] on his own album cover.” It was also “reasonable to infer that to distribute and perform his music, Jeremih would actively promote his music,” including the album featuring Flemming’s photo, thereby materially contributing to the primary infringing activities. Thus, the district court held, although the factual allegations against Jeremih “may be thin,” they are sufficient to plead that Jeremih both authorized the infringement and acted in concert with the other defendants in infringing Flemming’s photograph.

Turning to the claim of vicarious copyright infringement, the district court noted that knowledge is not a required element of this claim, and that a plaintiff must only allege that the defendant has declined to exercise the right and ability to supervise or control the infringing activity and received “a direct financial benefit” from that activity. The district court found that the plaintiffs plausibly alleged that Jeremih had the right and ability to supervise the other defendants’ selection of cover art for his album, noting that the album bearing the photograph was “marketed, published, and distributed” under the name “Jeremih.” Further, “as the literal ‘face’” of the album, Flemming’s photograph played a role in the song’s — and therefore Jeremih’s — marketability, thus giving Jeremih a direct financial benefit by way of album sales.

The district court also denied defendants’ motion to dismiss Rams’ right of publicity claim. Defendants argued that the law of Denmark applied, because Rams was domiciled there, and that Denmark law does not recognize right of publicity claims by noncelebrities. The parties agreed that, because the case was transferred to the Southern District of New York from the Central District of California, California choice of law rules govern the analysis of the applicable substantive law.

The district court concluded that, under California choice of law rules, Rams’ domicile in Denmark did not necessarily require the application of Denmark law, and that the court must apply California’s three-step governmental interest test to determine whether the substantive law of California or Denmark applies. First, the court noted that substantive laws of California and Denmark materially differ, in that California makes a right of publicity claim available by statute, whereas Denmark has only a common-law right of publicity claim, which arguably applies only to celebrities. Second, the court determined that no actual conflict existed between the laws of California and Denmark. According to the court, the defendants failed to show that the law of California “should be displaced” in favor of Denmark’s common law, because Denmark has “expressed no interest in limiting the recovery of its residents” exclusively to celebrities. Because it found that only one jurisdiction (California) had a legitimate interest in having its right of publicity law applied, the district court did not reach the third part of the test — applying the law of the state whose interest would be most impaired if its law was not applied.

The district court therefore ruled that California law applied to Rams’ right of publicity claims, and that Rams plausibly alleged a violation of her right of publicity, because defendants knowingly distributed her image throughout California without authorization and profited from it.