Copyright – {Photograph}

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Where a plaintiff has alleged that one in every of his aerial pictures was unlawfully used on a defendant’s LinkedIn web page, abstract judgment needs to be denied as a result of there’s a real subject of fabric reality as as to if the {photograph} utilized by the defendant was the {photograph} through which the plaintiff owns a copyright.

“Plaintiff David Gordon Oppenheimer (‘Oppenheimer’) alleges that Defendant Jay Smith (‘Smith’) unlawfully used Oppenheimer’s {photograph} on his LinkedIn web page. In this motion, he seeks damages and injunctive aid towards Smith; Smith’s employer, DCB and Associates, LLC (‘DCB’); and DCB’s supervisor, Douglas Bray (‘Bray’) (collectively, ‘Defendants’). … Defendants assert a counterclaim searching for damages and legal professional charges from Oppenheimer pursuant to Massachusetts General Laws chapter 93A, … which prohibits ‘unfair or deceptive acts or practices in the conduct of any trade or commerce.’ Mass. Gen. Laws ch. 93A, §2(a). …

“Oppenheimer asserts two theories of legal responsibility: copyright infringement, see 17 U.S.C. §§501–04, and illegal elimination of copyright administration data, see 17 U.S.C. §1202. At the outset, nonetheless, every concept requires Oppenheimer to show that the {photograph} utilized by Smith was, in truth, the {photograph} through which Oppenheimer owns a copyright and which he had protected with copyright administration data. There is a real subject of fabric reality as to that time. … Accordingly, as a result of a real dispute stays as to a reality that may be a prerequisite for Oppenheimer to get well beneath both concept, abstract judgment is not going to enter for Oppenheimer on legal responsibility. …

“Though Defendants’ pleading could possibly be clearer on this level, the Court understands Defendants to be alleging that the prices and charges they’ve incurred in defending the underlying copyright lawsuit represent damages beneath chapter 93A. …

“It stays for the Court to find out whether or not Defendants have adequately pleaded an unfair or misleading act or apply within the type of Oppenheimer’s allegedly predatory litigation ways. Defendants advance two theories. Their main concept is that Oppenheimer trolls for unwitting companies and makes an attempt to lure them into infringing his copyrights by ‘provid[ing] unmarked copies of his photographs as well as marked copies.’ … Defendants’ second concept, which they point out solely in passing, is that the lawsuit itself quantities to baseless litigation or an abuse of the judicial course of. …

“The Court begins with the trolling concept. …

“… Defendants’ authorized argument is missing. They haven’t recognized, for instance, any ‘common-law, statutory, or other established [basis]’ for concluding that Oppenheimer’s alleged conduct was unfair, … and the Court is skeptical that such foundation exists, provided that Oppenheimer’s proper to pursue the illegal replica of his pictures is protected by federal copyright legislation. … Further, the Court is just not conscious of any case through which a copyright litigant’s trolling habits alone, with none further misconduct, was held to represent an unbiased authorized incorrect. Defendants’ conclusory arguments, due to this fact, usually are not ample to make out the considerably novel declare {that a} copyright proprietor deliberately distributing his or her pictures in a fashion calculated to foment copyright infringement lawsuits violates chapter 93A.

“The Court turns subsequent to Defendants’ arguments associated to Oppenheimer’s use of the judicial course of. … Defendants argue that Oppenheimer is utilizing litigation to control or punish those that is not going to settle his claims. … Even assuming that utilizing the specter of litigation to coerce an unjustified out-of-court settlement may violate chapter 93A, Defendants’ amended counterclaim factors solely to calls for and harm awards in different instances involving Oppenheimer, quite than pleading information that will set up such conduct right here. … Defendants’ counterclaim is devoid of claims about Oppenheimer’s specific actions in relation to them, and their normal allegations about Oppenheimer’s enterprise mannequin don’t plead a cognizable 93A declare. …

“For the foregoing reasons, Oppenheimer’s motion for partial summary judgment, [ECF No. 12], is denied, and Oppenheimer’s motion to dismiss Defendants’ counterclaim, [ECF No. 20], is granted.”

Oppenheimer v. DCB and Associates, LLC, et al. (Lawyers Weekly No. 02-151-26) (11 pages) (Burroughs, J.) (Civil Action No. 25-cv-10363-ADB) (March 19, 2026).

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