Case 5:19-cv-00566-TJM-ATB Document 26 Filed 08/24/20 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`________________________________________
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`JAMES BASS,
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`Plaintiff,
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`v.
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`SYRACUSE UNIVERSITY,
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`Defendant.
`_________________________________________
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`THOMAS J. McAVOY,
`Senior United States District Judge
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`No. 5:19-cv-566
` (TJM/ATB)
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`DECISION & ORDER
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`Before the Court is Plaintiff James Bass’s motion for partial summary judgment in
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`this case concerning Plaintiff’s claims of copyright infringement. See dkt. # 17. The parties
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`have briefed the issues, and the Court has determined to decide the matter without oral
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`argument.
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`I.
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`Background
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`This case concerns claims by Plaintiff James Bass that Defendant Syracuse
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`University violated his copyright in photographs that Bass took of Syracuse University men’s
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`basketball players. Bass is a professional photographer who licensed his work for a fee.
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`Plaintiff’s Statement of Material Facts (“Plaintiff’s Statement”), dkt. # 20, at ¶ 1.1 He
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`1Both parties filed statements of material facts with citations to the record as
`required by Local Rule 7.1(a)(3). The Court will cite to the Plaintiff’s statement for facts
`(continued...)
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`1
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`discontinued his business in 2018. Defendant’s Response to Plaintiff’s Statement of
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`Material Facts (“Defendant’s Resposne”), dkt. # 23-5, at ¶ 1. 2 Defendant Syracuse
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`University is a private university located in Syracuse, New York. Plaintiff’s Statement at ¶ 2.
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`Plaintiff photographed members of the Syracuse University men’s basketball team on
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`September 21, 2018. Id. at ¶ 3. Among the team members he photographed were Oshae
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`Brissett and Tyus Battle. Id.
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`The parties disagree about the nature of the ownership of the photographs that
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`Plaintiff took on that occasion, including the photographs of Brissett and Battle. Compare
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`Plaintiff’s Statement at ¶ 4, Defendant’s Response at ¶ 4. Plaintiff claims that he “has at all
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`times been the sole owner of all right, title and interest in” those photographs, as well as the
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`copyright to them. Plaintiff’s Statement at ¶ 4. Defendant disputes that Plaintiff solely owns
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`the photographs “to the extent that the statement is intended to suggest that the University
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`does not have a license to” them. Defendant’s Response at ¶ 4. Defendant claims to
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`possess such a license. Id.
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`Plaintiff contends that he only licensed the photographs to Syracuse “for certain
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`uses.” Plaintiff’s Statement at ¶ 5. He contends that the license he provided Syracuse
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`covered only the University’s “own social media accounts,” but that the license did not
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`include “commercial billboards, third-party cross promotion purposes or any other
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`commercial purpose.” Id. The University agrees that Plaintiff licensed his photographs to
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`1(...continued)
`which are uncontested and note where the parties disagree.
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`2Defendant cites to a portion of Plaintiff’s Deposition where he admits that he no
`longer works as a photographer. The Court has examined that testimony and agrees that
`this fact cannot be contested.
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`2
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`Syracuse, but asserts that “the license provided to the University by the Plaintiff was not
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`restricted in scope.” Defendant’s Response at ¶ 5. Plaintiff in particular argues that he
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`never licensed the photographs for use on billboards. Plaintiff’s Statement at ¶ 6.
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`Defendant response that the license Plaintiff provided “was not restricted in scope.”
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`Defendant’s Response at ¶ 6.
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`The parties agree that they never entered into any written contract. Plaintiff’s
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`Statement at ¶ 7. Based on his oral communications with a Syracuse University employee,
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`however, Plaintiff understood that the license he provided was “for use on Defendant’s
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`social media accounts in exchange for a flat fee.” Id. at ¶ 8. Plaintiff claims that he did not
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`agree that Defendant could use his photographs “for commercial purposes, such as on
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`billboards, third-party cross promotion purposes or any other commercial purpose.” Id. at ¶
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`9. Defendant disputes these claims; the license the Plaintiff provided, Syracuse claims,
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`contained no restrictions on such use or “in scope.” Defendant’s Response at ¶¶ 8-9.
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`Plaintiff alleges that Defendant violated the agreement on two occasions. The
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`parties agree that Syracuse used the photographs of Brissett and Battle on a billboard in
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`November 2018. Compare Plaintiff’s Statement at ¶ 10 and Defendant’s Response at ¶ 10.
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`Plaintiff alleges that this use of the photographs exceeded the scope of the license he
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`provided. Plaintiff’s Statement at ¶ 10. Defendant denies that this use exceeded the scope
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`of the license. Defendant’s Response at ¶ 10. Plaintiff alleges that he became aware of
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`the misuse of his photographs on the billboard in November 2018 and discovered in March
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`2019 that Defendant had used his photographs for “third-party cross-promotional materials.”
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`Plaintiff’s Statement at ¶ 11. Plaintiff contends that the license did not permit such uses
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`and that he did not provide any form of consent to use his images in the way Syracuse did.
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`3
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`Id. at ¶ 12. Defendant contends that the license permitted such uses. Defendant’s
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`Response at ¶ 12.
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`Plaintiff’s counsel, Liebowitz Law Firm, PLLC, has a routine practice of registering
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`photographs with the United States Copyright Office for the firm’s clients. Plaintiff’s
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`Statement at ¶ 13. Plaintiff authorized the firm to register his copyrights. Id. at ¶ 14. Some
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`party or entity3 registered the photographs with the Copyright Office and those photographs
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`received registration number. Id. at ¶¶ 15-16. Plaintiff received a registration for his
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`copyright of the picture of Brissett within five years of when he first published the
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`photograph. Id. at ¶ 17.
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`Defendant has provided the Court with additional statements of material facts, to
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`which the Plaintiff has responded. See Defendant’s Responsive Statement of Material
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`Facts (“Defendant’s Statement”), which continues on from Defendant’s Response; Plaintiff’s
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`Response to Defendant’s Counter-Statement of Facts (“Plaintiff’s Response”), dkt. # 24-1.
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`Defendant states that Syracuse has a “regular practice” of hiring “external photographers” to
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`take pictures of intercollegiate athletic teams. Defendant’s Statement at ¶ 1. The University
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`uses such photographs “for internal and external promotional use.” Id. Syracuse alleges
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`that the University “obtains the exclusive rights to the photographs” from such sessions. Id.
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`Defendant alleges that Plaintiff agreed to conduct the September 21, 2018 photo
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`3Plaintiff here demonstrates why writing teachers frequently decry use of the
`passive voice. Plaintiff’s statement represents that “[t]he photograph depicting Oshae
`Brissett (Player #11) was registered with the U.S. Copyright Office (“USCO”), was
`deposited with the USCO under content title ‘09.21.18_cuse_mbb_082.jpg’ and was given
`registration number no. [sic] VA 2-144-186 (the ‘186 Registration’).” Plaintiff’s Statement
`at ¶ 15. While the Court could guess at who sought the copyright from the context and
`can assume that the Copyright Office issued the registration, Plaintiff’s statement does not
`provide this information.
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`4
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`session “in exchange for a $450 payment,” which was Syracuse’s “standard rate” for such
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`work. Id. at ¶ 2. Plaintiff received $450 as payment from the University, as well as two
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`tickets to a men’s basketball game against the University of Pittsburgh. Id. at ¶¶ 3-4.
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`Plaintiff admits that he “does not like to conduct oral negotiations or enter into verbal
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`agreements because he ‘want[s] there to be a paper trail so that nothing is minsconstrued
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`or misunderstood.’” Id. at ¶ 5. Still, he did not provide, request, or sign a written agreement
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`with the University regarding the photographs. Id. at ¶ 6.
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`Plaintiff did speak once with Jordan Kligerman, a University employee, regarding the
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`photo session. Id. at ¶ 7. Kligerman claims that he told Defendant the purpose of the
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`September 21, 2018 photography event, and explained that the University would use the
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`photographs for a variety of purposes, “including . . . social media postings, tickets,
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`programs, posters, billboards, in game visuals, and other promotional purposes.” Id. at ¶ 8.
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`Plaintiff denies that he agreed to such a spectrum of uses, contending instead that he
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`“limited the scope of the license to use of the Photographs on Defendant’s social media
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`accounts.” Plaintiff’s Response at ¶ 8. Kligerman claims that Plaintiff raised no limitations
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`on the use of the photographs during their conversation; Plaintiff maintains that he limited
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`use to social media accounts. Defendant’s Statement at ¶ 9; Plaintiff’s Response at ¶ 9.
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`Plaintiff offers the same response to Kilgerman’s claim that the two exchanged text
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`messages in which Plaintiff did not express any desire to limit use of the photographs.
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`Defendant’s Statement at ¶ 10; Plaintiff’s Response at ¶ 10. Plaintiff also claims that he
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`expressed a desire to limit use of the photographs to social media during discussions with
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`Kligerman and other University representatives at the photo shoot. Defendant’s Statement
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`at ¶ 12; Plaintiff’s Response at ¶ 12. Similarly, he maintains that his license was limited to
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`Case 5:19-cv-00566-TJM-ATB Document 26 Filed 08/24/20 Page 6 of 16
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`social media use, even though Defendant claims that Plaintiff never had any specific
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`conversations with anyone at Syracuse related to the breadth of the license he had
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`provided. Defendant’s Statement at ¶ 13; Plaintiff’s Response at ¶ 13. He denies he ever
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`stated the limitations on usage he now claims. Defendant’s Statement at ¶ 14; Plaintiff’s
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`Response at ¶ 14. Plaintiff admits that he did not express any desire to limit use in email
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`exchanges he had with Kligerman and others from the University. Defendant’s Statement
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`at ¶ 11; Plaintiff’s Response at ¶ 11.
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`When the September 21, 2018 photo shoot ended, Plaintiff provided Syracuse with a
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`memory card. Defendant’s Statement at ¶ 15. The card contained around 900 images,
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`which the University copied and then returned the card to the Plaintiff. Id. The parties
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`disagree about whether they had agreed to any restrictions on how the Defendant used the
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`images. Defendant’s Statement at ¶ 16; Plaintiff’s Statement at ¶ 16. The University used
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`the images on a billboard and on social media postings. Defendant’s Statement at ¶ 17.
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`The billboard where the images appeared was located on Interstate 81, near the University.
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`Id. at ¶ 18. The billboard was in place from October 15, 2018 to January 15, 2019. Id.
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`After Plaintiff first learned of the billboard on November 28, 2018, he sent Kligerman
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`an email stating, in part, “I’ve been seeing the photos all over, even on a billboard next to I-
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`81 if I’m not mistaken.” Id. at ¶¶ 19-20. Plaintiff did not allege at that time that the billboard
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`represented a violation of the parties’ agreement about use of the photographs. Id. at ¶ 21.
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`He made no such allegation until March 13, 2019, when he emailed Kligerman to complain
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`that the University had used certain images on an Instagram post and alleged that “I never
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`signed a release or agreement with the university granting them any sort of usage rights.”
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`Id. at ¶ 24. The parties dispute whether Plaintiff had ever before asserted any limits on the
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`6
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`Case 5:19-cv-00566-TJM-ATB Document 26 Filed 08/24/20 Page 7 of 16
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`use of the photographs. Compare Defendant’s Statement at ¶¶ 26-27 with Plaintiff’s
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`Response at ¶¶ 26-27. Plaintiff continues to claim that he had limited the license to social
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`media uses. Plaintiff’s Response at ¶¶ 26-27. He also contends that he limited the license
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`so that Defendant could not include the photographs as part of “a commercial endeavor” on
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`social media.4 Id. at ¶ 32. He admits, however, that he never told anyone at Syracuse that
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`they could not make this use of the photographs. Id. at ¶ 33. He also admits that he first
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`asserted a copyright claim on May 13, 2019, when he filed his Complaint in this matter. Id.
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`at ¶ 28. Plaintiff further admits that he licensed the use of the images on Twitter, Instagram,
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`and Facebook. Id. at ¶ 31.
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`Plaintiff filed a one-count Complaint in this action on May 13, 2019. See dkt. # 1.
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`That count raises a copyright infringement claim pursuant to 17 U.S.C. §§ 106 and 501.
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`Plaintiff alleges that Defendant willfully violated his copyright in the photographs by
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`displaying them in places other than social media and seeks compensatory and punitive
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`damages. At the close of discovery, Plaintiff filed the instant motion. The parties then
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`briefed the issues, bringing the case to its present posture.
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`II.
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`Legal Standard
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`Plaintiff has filed a motion for partial summary judgment. It is well settled that on a
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`motion for summary judgment, the Court must construe the evidence in the light most
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`favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.
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`1999), and may grant summary judgment only where "there is no genuine issue as to any
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`material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R.
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`4Plaintiff complained that Syracuse has permitted another business to place its logo
`on his photographs.
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`Case 5:19-cv-00566-TJM-ATB Document 26 Filed 08/24/20 Page 8 of 16
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`CIV. P. 56(a). An issue is genuine if the relevant evidence is such that a reasonable jury
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`could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242,
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`248 (1986).
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`A party seeking summary judgment bears the burden of informing the court of the
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`basis for the motion and of identifying those portions of the record that the moving party
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`believes demonstrate the absence of a genuine issue of material fact as to a dispositive
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`issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish
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`a prima facie basis for summary judgment, the burden of production shifts to the party
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`opposing summary judgment who must produce evidence establishing the existence of a
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`factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co.
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`v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported
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`motion for summary judgment may not rest upon "mere allegations or denials" asserted in
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`his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or
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`on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105,
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`114 (2d Cir. 1998).
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`III.
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`Analysis
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`Plaintiff seeks summary judgment on liability as to his copyright infringement claim.
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`He also appears to seek dismissal of the affirmative defenses the Defendant has asserted.
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`The Court will first address the summary judgment motion and then examine Plaintiff’s
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`arguments with respect to affirmative defenses.
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`A.
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`Copyright Infringement
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`Plaintiff’s claim is for copyright infringement. “‘Copyright infringement is established
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`8
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`when the owner of a valid copyright demonstrates unauthorized copying.’” Castle Rock
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`Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 137 (2d Cir. 1998) (quoting Repp v.
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`Webber, 132 F.3d 882, 889 (2d Cir. 1991)). A “plaintiff must show: (i) ownership of a valid
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`copyright; and (ii) unauthorized copying of the copyrighted work.” Jorgensen v. Epic/Sony
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`Records, 351 F.3d 46, 51 (2d Cir. 2003) (quoting Castle Rock, 150 F.3d at 137). “A
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`certification of registration from the United States Register of Copyrights constitutes prima
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`facie evidence of the valid ownership of a copyright.” Id. To prove that a defendant copied
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`the material in question without authorization “a plaintiff must show both that his work was
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`‘actually copied’ and that the portion copied amounts to an ‘improper or unlawful
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`appropriation.’” Id. (quoting Castle Rock, 150 F.3d at 137). Plaintiff contends that he has a
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`copyright of the photographs in question, and that the Defendant copied that material
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`without authorization when Syracuse used the images on a billboard.
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`Defendant responds that the University’s use of the photographs was not without
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`authorization. Defendant argues that Plaintiff did not place any restrictions on the use of
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`the photographs, and did not object to their use on the billboard until months after he first
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`saw the billboard with the photographs on them. Even if Plaintiff did place restrictions on
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`the use of the photographs, Plaintiff’s failure to object to this use until months after he saw
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`the billboard, Defendant claims, is part of a pattern of conduct that could be interpreted as
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`an implied license. Defendant therefore insists that questions of fact exist on this claim
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`precluding summary judgment.
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`The issue here is whether a reasonable juror could conclude that Plaintiff authorized
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`the use of the photographs in the way that the University claims he did. If a jury could make
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`such a finding, then Defendant could prevail on the copyright claim and the Court must deny
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`9
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`Plaintiff’s motion. The parties agree that some sort of license existed, and Plaintiff would
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`have no claim if he authorized the use he now complained of. As explained, he insists that
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`the license covered only use on social media. If that were uncontested, then he would be
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`entitled to summary judgment, since “‘if a license is limited in scope and the lincensee acts
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`outside the scope, the licensor can bring an action for copyright infringement.’” Sohm v.
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`Scholastic, Inc., 959 F.3d 39, 46 (2d Cir. 2020) (quoting BroadVision, Inc. v. Med. Protective
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`Co., No. 08-cv-1478, 2010 U.S. Dist. LEXIS 131106, 2010 WL 5158129, at *3 (S.D.N.Y.
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`Nov. 23, 2010)(internal quotation omitted)).
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`The existence of that oral agreement is contested, however, and a reasonable juror
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`could conclude that Defendant’s use was authorized based on the evidence in this case.
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`As detailed above, Plaintiff admits that the parties have no written contract that specifies
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`permitted and proscribed uses. Plaintiff instead relies on an oral agreement he contends
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`that he had with a representative of the Defendant. That representative disputes Plaintiff’s
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`description of their agreement. A jury will have to decide which version to believe, and a
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`question of fact exists as to the nature of the agreement. Summary judgment is not
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`available to the Plaintiff on this basis.
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`Moreover, Defendant points out that evidence exists by which a jury could conclude
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`that Plaintiff, even after he was aware of the allegedly infringing billboard, neither objected
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`to that use or engaged in any behavior by which Syracuse would have known that the
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`University had violated their alleged agreement. Plaintiff did not complain of the use until
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`many months after he became aware of the billboard, even though he contacted the
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`University about the photographs (and billbaord) months before his legal complaint, where
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`he first raised the issue. Courts in this Circuit have found that “[u]nder section 204 of the
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`10
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`Copyright Act, a grant of an exclusive license must be in writing, but . . . ‘a nonexclusive
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`license may be granted orally, or may even be implied from conduct.’” Psihoyos v. Peason
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`Educ., Inc., 855 F.Supp.2d 103, 119 (S.D.N.Y. 2012) (qutoing Keane Dealer Servs., Inc. v.
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`Hartz, 968 F.Supp. 944, 947 (S.D.N.Y. 1997); see also Graham v. James, 144 F.3d 229,
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`235 (2d Cir. 1998) (“Under federal law, ‘nonexclusive licenses may . . . be granted orally, or
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`may even be implied from conduct.’”) (quoting Melville B. Nimmer and David Nimmer,
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`NIMMER ON COPYRIGHT § 10.03[A][7], at 10-43). A reasonable juror could conclude that
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`Plaintiff’s conduct implied that he had granted permission for the Defendant to use his
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`photographs on the billboard; instead of taking an opportunity to object to that use, Plaintiff
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`mentioned the use approvingly to Syracuse administrators. The motion for summary
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`judgment will therefore be denied.
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`B.
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`Affirmative Defenses
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`Plaintiff also seeks summary judgment on affirmative defenses that Defendant raised
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`in responding to the Complaint.5 The Court will address each motion in turn. As a general
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`5Federal Rule of Civil Procedure 8(c) requires that “[i]n responding to a pleading, a
`party must affirmatively state any avoidance or affirmative defense” and lists particular
`defenses that must be pled. FED. R. CIV. P. 8(c)(1). Commentators conclude that this Rule
`appeared in the Federal Rules of Civil Procedure because traditional pleading rules had
`required a defendant to choose between denying the plaintiff’s allegations or admitting
`them and then asserting an affirmative defense. Wright & Miller, FEDERAL PRACTICE AND
`PROCEDURE § 1270. “This imposed election between the pleader’s right to deny the
`allegations in the complaint and the right to interpose other defensive matters has been
`eliminated by Rule 8(e), which allows alternative and hypothetical pleading, regardless of
`the allegation’s consistency, and permits a defendant to set forth a denial and at the same
`time assert one of the defenses enumerated in Rule 8(c).” Id. The Court is aware that the
`usual practice in answering a complaint is for the defendant to assert, in boilerplate
`fashion, every conceivable affirmative defense, so as to avoid waiver. A defendant will
`then assert such defenses as apropriate at trial or in a motion for summary judgment.
`Such defenses, however, do not typically otherwise become involved in motion practice.
`(continued...)
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`11
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`matter, a defendant has the burden of proving an affirmative defense. Hubbs v. Suffolk
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`Cnty. Sheriff’s Dep’t., 788 F.3d 54, 59 (2d Cir. 2015)
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`i.
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`Failure to State a Claim
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` Plaintiff first seeks dismissal of Plaintiff’s affirmative defense of “failure to state a
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`claim upon which relief can be granted.” Plaintiff contends that there is no evidence to
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`support Defendant’s assertion that his pleading failed to state a claim upon which relief
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`could be granted. Both parties cite the familiar Rule 12(b)(6) standard on a motion to
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`dismiss. Under this standard, “[t]hreadbare recitals of the elements of a cause of action,
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`supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009) “To survive a motion to dismiss, a complaint must contain sufficient factual
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`matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting
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`Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)).
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`The Court finds it unlikely that this will become an issue, since the case has
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`advanced beyond the pleading stage. That is also why seeking to dismiss the affirmative
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`defense is largely a waste of the Court’s and the Defendant’s time. In any case, the Court
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`finds that, if a jury finds that Plaintiff has failed to prove that he restricted the license the
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`way he claims he did, the Defendant’s affirmative defense would be borne out. The Court
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`will therefore deny the motion in this respect.
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`ii.
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`Waiver
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`5(...continued)
`The Court is thankful that such is the usual approach, since evaluating motions to dismiss
`defenses that likely will be either contested and suitable for trial or irrelevant and unraised
`by the defendant is a waste of judicial resources. No rule appears to prohibit the Plaintiff
`from seeking summary judgment on the affirmative defenses, however, and the Court will
`therefore address the motion in this respect.
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`12
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`Case 5:19-cv-00566-TJM-ATB Document 26 Filed 08/24/20 Page 13 of 16
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`Plaintiff also argues that the Court should dismiss the affirmative defense of waiver.
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`He contends that “no reasonable trier of fact can conclude that Bass manifested an intent to
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`intentionally and knowingly relinquish his copyright to the Photographs.” “To establish
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`waiver, it is necessary to show that there has been an ‘intentional relinquishment of a known
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`right with both knowledge of its existence and an intention to relinquish it.’” Airco Alloys Div.
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`Airco Inc. v. Niagara Mohawk Pwer, 76 A.D.2d 68, 81 (4th Dept. 1980). The evidence
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`discussed above, however, indicates that evidence exists to support a claim that, even if
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`Plaintiff and Defendant actually made an oral agreement to restrict use of the photographs,
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`Defendant waived that right by his response to the existence of the billboard. Summary
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`judgment on that issue will be denied.
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`iii.
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`Equitable Estoppel
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`Plaintiff next claims no facts exist to support Defendant’s equitable estoppel
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`affirmative defense. His entire argument is “there is no evidence that Bass made any
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`misrepresentations to Defendant, nor is there evidence that Defendant reasonably relied on
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`Defendant’s statements.” Defendant responds that the evidence in this case shows that
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`Plaintiff did nothing to inform the University that the billboard exceeded the license that he
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`had provided until he sued them, gave them no reason to believe that Syracuse’s use of the
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`photographs violated the agreement, and that the University relied on this silence only to be
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`sued.
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`Equitable estoppel applies “where the enforcement of the rights of one party would
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`work an injustice upon the other party due to the latter’s justifiable reliance upon the
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`former’s words or conduct.” Kosakow v. New Rochelle Radiology Associates, PC, 274 F.3d
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`13
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`706, 725 (2d Cir. 2001). “[A] party may be estopped from pursuing a claim or defense
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`where 1) the party to be estopped makes a misrepresentation of fact to the other party with
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`reason to believe that the other party will rely upon it; 2) the other party reasonably relies on
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`it; 3) to her detriment.” Id. A copyright defendant can use equitable estoppel when “1) the
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`plaintiff had knowledge of defendant’s infringing acts, 2) the plaintiff either intended that
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`defendant rely on his acts or omissions or acted or failed to act in such a manner that
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`defendant had a right to believe that it was intended to rely on plaintiff’s conduct, 3) the
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`defendant was ignorant of the true facts, and 4) the defendant relied on plaintiff’s conduct to
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`its detriment.” Dallal v. New York Times Co., 2006 U.S. App. LEXIS 5171, *4 (2d Cir. Feb.
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`17, 2006).
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`Here, the evidence described above shows that a reasonable juror could conclude
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`that Plaintiff should be equitably estopped from asserting a copyright claim. He knew of the
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`alleged infringement for months and did not complain, and this caused Defendant to keep
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`the billboard up for months without knowledge that the billboard could be a source of
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`infringement. Plaintiff also sent emails where he appeared pleased that the images were
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`displayed to the public. These emails could have convinced the University to continue to
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`display the images, thinking that Plaintiff agreed they should be shown in that form. The
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`Court will deny the motion in this respect as well.
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`iv.
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`Laches
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`Plaintiff next seeks dismissal of Defendant’s laches affirmative defense. Defendant
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`relates that it does not intend to raise laches as a defense. The Court will therefore grant
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`the motion as unopposed in this respect.
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`Case 5:19-cv-00566-TJM-ATB Document 26 Filed 08/24/20 Page 15 of 16
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`v.
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`Ratification
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`Plaintiff next seeks judgment on Defendant’s ratification affirmative defense. In New
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`York, “ratification is the affirmance by a party of a prior act that did not bind it at the time but
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`that was done or purportedly done on its account.” Chemical Bank v. Affiliated FM Ins. Co.,
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`169 F.3d 121, 128 (2d Cir. 1999). “Ratification ‘must be performed with full knowledge of
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`the material facts relating to the transaction, and the assent must be clearly established and
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`may not be inferred from doubtful or equivocal acts or language.’” Id. (quoting Holm v.
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`C.M.P. Sheet Metal, Inc., 89 A.D. 2d 229, 455 (App. Div. 1982)).
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`Plaintiff’s argument in support of his motion is: “there is no evidence that Bass ratified
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`Defendant’s unlawful conduct as there is no evidence to suggest that Bass mainfested an
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`intent to adopt Defendant’s unauthorized use of the Photographs on the commercial
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`billboard.” Plaintiff is wrong that no reasonable juror could see Plaintiff as acting as if he
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`approved of the Billboard’s use of his photographs, which was the allegedly infringing
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`conduct. That evidence has been explained above. The motion will be denied in this
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`respect as well.
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`IV.
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`CONCLUSION
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`For the reasons stated above, the Plaintiff’s motion for partial summary judgment,
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`dkt. # 17 is hereby GRANTED in part and DENIED in part, as follows:
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`1.
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`2.
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`The motion is GRANTED with respect to Defendant’s affirmative defense of
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`laches, and that defense is dismissed from the case;
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`The motion is DENIED in all other respects.
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`IT IS SO ORDERED.
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`Case 5:19-cv-00566-TJM-ATB Document 26 Filed 08/24/20 Page 16 of 16
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`Dated: August 24, 2020
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