The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is the Motion of Defendants Gyro Advertising, Inc. and Steven Grasse (collectively, the "Gyro Defendants") to Dismiss the Amended Complaint of Plaintiff R. Bradley Maule ("Maule"). Additionally, Defendant Philadelphia Media Holdings, LLC ("PMH") has filed a Motion seeking to join in the Gyro Defendants' Motion to Dismiss. The Motion to Join is granted, and this Court treats the Motion to Dismiss as if filed on behalf of all three Defendants. For the reasons set forth below, the Defendants' Motion to Dismiss is granted in part and denied in part.
Maule is a photographer in Philadelphia, Pennsylvania, who focuses his photography on pictures of the Philadelphia area including, Philadelphia's skyline, "[its] neighborhoods, its people, culture, architecture, and its urban development." (Amend. Compl. ¶ 9.) He also maintains a website titled "phillyskyline.com," where he posts his photographs. Gyro Advertising, Inc. ("Gyro") is an advertising agency located in Philadelphia. Steven Grasse ("Grasse") is the chief executive officer and sole shareholder of Gyro. PMH is the publisher of The Philadelphia Inquirer and the Philadelphia Daily News, two major newspapers circulating in the Philadelphia area. On September 2, 2008, Maule filed an Amended Complaint against PMH, Gyro, and Grasse, in his individual capacity. 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").
Maule 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 Complaint also alleges claims against PMH in relation to a second photograph that Maule had posted on his website on March 13, 2008 to accompany an article he had written concerning the pending construction of the American Commerce Center. 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"). This photograph also contained a "PhillySkyline.Com" watermark. Maule asserts that, on March 17, 2008, four days after Maule posted the American Commerce Photograph on his website, PMH printed the same photograph on the front page of that day's edition of the Daily News, with the "PhillySkyline.Com" watermark removed from the photograph.
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.On December 17, 2008, this Court entered an Order dismissing Counts IV, VIII, IX, and X as to PMH. Counts V, VI, and VII survived the Motion to Dismiss.
On December 11, 2008, the Gyro Defendants filed their Motion to Dismiss, requesting that this Court dismiss Counts I-IV and IX-X of the Amended Complaint as to Gyro and Grasse. PMH has joined in the Gyro Defendants' Motion to Dismiss. Count I asserts a claim against all Defendants for copyright infringement, relating to the use of the Projected Skyline Photograph in the pig glossy. Count II is a request for injunctive relief pursuant to 17 U.S.C. § 502. Count III seeks declaratory relief against all Defendants and requests that Defendants' copyright in the pig glossy be invalidated. Count IV asserts a claim for appropriation under the Restatement (Second) of Torts § 652C for the Defendants' use of the Projected Skyline Photograph in the pig glossy. Count IX asserts a claim under the Lanham Act, 15 U.S.C. § 1125 for the use of both photographs. Count X asserts claims against all Defendants for violation of 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).
Per this Court's Order of December 17, 2008, dismissing Counts IV, IX, and X against PMH, Maule does not contest the dismissal of these claims with respect to the Gyro Defendants. As such, his claims for misappropriation, as well as his claims under the Lanham Act and the Pennsylvania Anti-Dilution Act (Counts IV, IX, and X) are hereby dismissed as to all ...