MEMORANDUM ORDER Plaintiff Kevin Downs brings a one-count complaint against defendant Oath Inc. Now before the Court are the parties’ cross-motions for summary judgment. Downs moves for summary judgment on the issue of liability, and Oath moves for summary judgment on its defense of statutory immunity under the Digital Millennium Copyright Act. For the reasons below, Downs’s motion is denied, Oath’s motion is granted, and the case is dismissed. BackgroundKevin Downs is a professional photographer who does freelance work for the New York Daily News. Defendant Oath Inc.’s Response to Plaintiff’s Statement Pursuant to Local Rule 56.1, at1 (“Oath 56.1 Counterstatement”), ECF No. 35. Oath Inc. is the owner and operator of HuffPost, which is a media brand with a website at www.huffingtonpost.com. Plaintiff’s Opposition to Defendant’s Statement Pursuant to Rule 56.1, at2 (“Downs 56.1 Counterstatement”), ECF No. 39.On January 29, 2017, Downs photographed a group of individuals at JFK Airport who were protesting President Trump’s “Travel Ban” (i.e., Executive Order 13769). Oath 56.1 Counterstatement20. On the same day, Downs licensed his photograph to the New York Daily News, which published it with an article titled “Federal judge grants emergency stay to thwart Trump’s refugee ban and halt deportations.” Id.23. The next day, an article was posted to www.huffingtonpost.com with the title: “Trump’s Disastrous Week of Presidency: The Chinese Exclusion Act and the Muslim Ban.” Id.24. The article — which contained commercial advertisements — used Downs’s photograph without his permission. Id.
25, 26, 35.The article was not written by a HuffPost employee; instead, it was written and uploaded by Grace Ji-Sun Kim, who was a participant on HuffPost’s “contributor” platform. Id.29. The contributor platform, which HuffPost operated between 2005 and 2018, included over 100,000 contributors who self-published blog posts. Downs 56.1 Counterstatement
