Amazon not vicariously liable for copyright infringement by hosting e-commerce platform for sale of allegedly infringing photo, but could be liable for contributory infringement –  Masck v. Sports Illustrated, 2013 WL 2626853 (E.D. Mich. June 11, 2013)

Amazon.com scored a partial victory in defending against a copyright infringement lawsuit.  The plaintiff in the lawsuit was photographer Brian Masck, who claims to have taken the sharpest photo of former University of Michigan football player Heisman Desmond Howard striking the iconic “Heisman pose” in a game where his team defeated archrival Ohio State University.  Masck claimed that unauthorized reproductions of his photo were offered for sale on Amazon.com.  Masck requested Amazon to stop selling copies of the photo on its website, but Amazon allegedly did not comply.  Masck sued Amazon and other sellers of the photo for copyright infringement.

Amazon filed a motion to dismiss the lawsuit, arguing that Masck could not bring a vicarious copyright infringement claim.  One requirement for vicarious liability for copyright infringement is the defendant’s right and ability to supervise the infringing conduct.  The court agreed with Amazon’s argument that it had no practical ability to determine which products being sold on its e-commerce platform were infringing.  Masck did not make specific factual allegations demonstrating that Amazon could plausibly verify the copyright status of each and every piece of merchandise it lists from third-party sellers.

Amazon did not fare so well in trying to dismiss Masck’s contributory infringement claim.  Selling infringing merchandise is considered a material contribution to infringement.  Amazon continued selling the alleged infringing photos even after Plaintiff requested their removal from Amazon’s website.  Plaintiff’s request should have alerted Amazon to potential infringement.  Based on that record, the court declined to dismiss the contributory infringement claim against Amazon.