OPINION AND ORDER In November 2020, plaintiff Shane Crowley photographed defendant Joseph Guillermo Jones, a popular rap artist who performs under the name “Jim Jones.” Crowley later emailed the photographs to Jones’s manager, non-party Tony Villegas. In a text message, Crowley requested that Villegas “have these images credited if used.” Villegas asked Crowley to clarify what he meant, and Crowley responded, “if used on web credit — Shane Crowley and if used on IG tag or “shaneroowwley.” Villegas accepted Crowley’s request with the reply, “Ok bet. Got you” According to the Second Amended Complaint (the “Complaint”), one of those photographs (the “Photograph”) was thereafter used without credit as cover art for Jones’s 2021 album “The Fraud Department,” exploiting it in a derivative form on both online music services and physical albums sold on vinyl and CD. Crowley asserts that these uses went beyond the nonexclusive license that he granted to Villegas in their text-message exchange, and brings claims under the Copyright Act and the Digital Millennium Copyright Act (“DMCA”). Defendants move to dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P. Because the Complaint plausibly alleges that defendants’ exploitation of the Photograph was not permitted by the license from Crowley to Villegas, the motion to dismiss the copyright infringement claims will be denied. Defendants’ motion to dismiss Crowley’s request for statutory damages and attorneys’ fees will be granted, as will the motion to dismiss his claim brought under the DMCA. FACTS ALLEGED IN THE COMPLAINT. The Court accepts the non-conclusory allegations of the Complaint as true and draws all reasonable inferences in favor of Crowley as the party opposing the motion. The Complaint refers to the grant of a license but does not annex the text-message exchange in which the license was purportedly granted. Crowley is a photographer of hip-hop music and culture. (Compl’t 12.) Defendant Rory William Quigley, who performs under the stage name “Harry Fraud,” collaborated with Jones on an album released in 2021 called “The Fraud Department.” (Compl’t
5-6, 19, 50.) The Complaint alleges that Crowley took photographs of Jones that he later transmitted to Villegas, and that a modified version of one of the photographs (the “Photograph”) was used as album art for “The Fraud Department.” On November 8, 2020, Crowley sent the Photograph to Villegas via e-mail. (Compl’t 15.) The Photograph was later registered with the United States Copyright Office, and appears as follows: (Compl’t 13 & Ex. A.) The Complaint makes frequent reference to a “license” granted from Crowley to Villegas for the Photograph, conditioned on crediting Crowley as the photographer. (See, e.g., Compl’t
