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of his photos, and his photos are unpublished.”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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