The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is the Motion of Defendant Philadelphia Media Holdings, LLC ("PMH") to Dismiss the Amended Complaint of Plaintiff R. Bradley Maule ("Maule"). For the reasons set forth below, the Motion to Dismiss is granted in part, and denied in part.
PMH is the publisher of The Philadelphia Inquirer and the Philadelphia Daily News (Daily News), two major newspapers circulating in the Philadelphia area. Maule is a photographer who maintains a website titled "phillyskyline.com." Maule focuses his photography on the Philadelphia area, including Philadelphia's skyline, "[its] neighborhoods, its people, culture, architecture, and its urban development." (Amend. Compl. ¶ 9.) The facts set forth in Maule's Complaint allege that, in May 2005, Maule photographed the Philadelphia skyline from the eighteenth floor of the Penn Tower, a hotel located in West Philadelphia. Maule alleges that he then altered the photograph in two ways. First, he inserted artistic conceptual renderings of the Comcast Center and Mandeville Place, buildings that had not yet been completed and which were still under construction in May 2005. Second, in order that the photograph would contain a watermark, he modified a billboard in the picture to read: "Visit Philly Skyline Dot Com." (Amend. Compl. ¶ 12(b)). Thereafter, Maule posted the photograph, complete with the alterations to the billboard, the Comcast Center, and Mandeville Place, on his website as a visual representation of how the Philadelphia skyline would appear in 2008 ("Projected Skyline Photograph").
He further alleges that, sometime in November 2007, PMH began an advertising campaign titled "The Return of the Flying Pigs." As part of this campaign, Maule alleges that PMH distributed a series of glossy inserts in its newspapers, depicting a pig flying across the Philadelphia skyline ("pig glossy"). Maule asserts that PMH cropped the picture of the Philadelphia skyline in the pig glossy from the Projected Skyline Photograph on his website, removed the "Visit Philly Skyline Dot Com" text from the billboard in the picture, and then printed the picture in its advertisements. Maule subsequently registered the Projected Skyline Photograph with the United States Copyright Office on May 13, 2008.
Maule's next contention involves a second photograph that he posted on his website on March 13, 2008 to accompany an article he had written concerning the pending construction of the American Commerce Center. The post was titled "13 March 08:1,500 feet of Breaking News" and contained several paragraphs of text, along with four photographs. At the end of the article, the following text appeared: "Notes: All images courtesy of Walnut Street Capital and Kohn Pederson Fox Associates." Soon after posting this version of the article, Maule asserts that he decided to update the article by adding one of his own photographs. This photograph had been taken from the west side of City Hall and had never before been published. It is a depiction of the Philadelphia skyline, but with the addition of a sketch that Maule had added outlining where the American Commerce Center would be located and what it would look like upon completion ("American Commerce Photograph"). It also contained a watermark, which appeared along the bottom and stretched the length of the photograph, and read: "Philly Skyline.Com," and was accompanied by the following commentary, which appeared above the photograph on Maule's webpage: "UPDATE: Ah what the hell, howzabout a rudimentary Philly Skyline composite?"
On March 17, 2008, four days after Maule posted the American Commerce Photograph on his website, Maule alleges that PMH printed the same photograph on the front page of that day's edition of the Daily News, with the "Philly Skyline.Com" watermark removed from the photograph.
On September 2, 2008 Maule filed an Amended Complaint in this Court against PMH, Gyro Advertising, and Steven Grasse. On October 6, 2008, PMH filed a Motion to Dismiss Counts IV through X of Maule's Complaint. Count IV sets forth a claim for appropriation pursuant to the Restatement (Second) of Torts § 652C for use of the Projected Skyline Photograph in the pig glossy. Count V asserts a claim for copyright infringement pursuant to 17 U.S.C. §§ 503-505 for use of the Projected Skyline Photograph in the pig glossy. Count VI is a request for injunctive relief pursuant to 17 U.S.C. §§ 502. Count VII is a request for declaratory relief pursuant to 28 U.S.C. § 2201, requesting that this Court invalidate PMH's copyright on the March 17, 2008 edition of the Daily News. Count VIII sets forth a claim for appropriation under the Restatement (Second) of Torts § 652C, relating to the use of the American Commerce Photograph in the March 17, 2008 edition of the Daily News. Count IX asserts a claim under the Lanham Act, 15 U.S.C. § 1125 for the use of both photographs. Finally, Count X asserts claims under the Pennsylvania Anti-Dilution Act, 54 Pa. C.S.A. §§ 1124 and 1125.
A motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), tests the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A court must determine whether the party making the claim would be entitled to relief under any set of facts that could be established in support of his or her claim. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley, 355 U.S. at 45-46); see also Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985).
In considering a motion to dismiss, all allegations in the complaint must be accepted as true and viewed in the light most favorable to the non-moving party. Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989) (citations omitted). Exhibits which are attached to the complaint and upon which one or more claims are based can be considered in deciding a motion to dismiss pursuant to Rule 12(b)(6). See Rossman v. Fleet Bank (R.I.) Nat'l Assoc., 280 F.3d 384, 388 n.4 (3d Cir. 2002). A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005) (citations omitted).
Initially, we note that PMH has moved to strike, and Maule has agreed to withdraw, Maule's claims for specific dollar amounts, pursuant to Local Civil Rule 5.1.1. As such, Maule's claims for specific dollar amounts are stricken, and in their stead, this Court construes the Complaint as asserting claims in unspecified amounts in excess of the arbitration limits of Local Civil Rule 53.2.
A. Copyright Infringement
Maule asserts claims against PMH for copyright infringement related to PMH's use of the American Commerce Photograph in the March 17, 2008 edition of the Daily News.*fn1 The exclusive rights of copyright holders are codified in statute at § 106 of the Copyright Act. Under § 106, the copyright owner has the exclusive right both to publicly display his work and to make ...