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Maule v. Anheuser Busch LLC

United States District Court, E.D. Pennsylvania

July 27, 2018

R. BRADLEY MAULE, Plaintiff,
v.
ANHEUSER BUSCH, LLC, and EVERBRITE, LLC, Defendants.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         Photographer Bradley Maule contends that Anheuser Busch and Everbrite, a neon sign manufacturer, created a Budweiser beer sign that copied his photograph of the Philadelphia skyline. Maule sued the Defendants, alleging copyright infringement for which he seeks damages as well as injunctive and declaratory relief (Counts I, II and III), violations of the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq. (Count IV), violations of the Lanham Act, 15 U.S.C. § 1125 et seq. (Count V), state law claims for unfair competition and violations of the Pennsylvania Trademark Act (Count VI) and commercial disparagement (Count VII). (Second Am. Compl., ECF No. 12.) The Defendants filed a Motion to Dismiss (ECF No. 16), and in his Response, Maule voluntarily dismissed Counts V, VI and VII. (Pl.'s Resp. in Opp. to Mot. to Dismiss at 5, ECF No. 23.) The Court now grants the Defendants' Motion with respect to Counts I through IV for the reasons that follow.

         I

         Maule, as he describes himself, is a “well-known and highly respected Philadelphia photographer and journalist.” (Second Am. Compl., ¶ 8.) In May 2005, he took a picture of the Philadelphia skyline from the eighteenth floor of the since demolished Penn Tower Hotel in West Philadelphia. (Id. at ¶ 9.) The wide angle color photograph captures Center City Philadelphia as the sun is setting, accentuating light and shadows on buildings in the skyline. (Id. at ¶ 10; Compl., Ex. B, ECF No. 1-5.) The scene features a number of prominent buildings set against a blue sky with white clouds, including One Liberty Place, Two Liberty Place, the BNY Mellon Center and 1818 Market Street. (Ex. B.) The photograph also captures a sense of depth by showing parts of the City in the foreground, including Franklin Field and a park, and beyond that, the Schuylkill Expressway and River. (Id.)

         After taking the photograph, Maule altered it by adding images of two buildings which at that time did not exist-the subsequently constructed Comcast Center and Mandeville Place, a building which as it turns out was never built. (Second Am. Compl., ¶ 11; Ex. B.) To achieve this effect, Maule inserted digital images of the Comcast Center and Mandeville Place in the locations where they were to be built. (Second Am. Compl., ¶ 11; Ex. B.) The images of both buildings are scaled, making their size appear appropriate with respect to other Center City buildings. (Ex. B.) Maule also altered the text of a billboard on top of a building in the picture's lower right foreground. (Second Am. Compl., ¶ 11; Compl., Ex. A, ECF No. 1-4; Ex. B.) The billboard originally read “Locust on the Park; Luxury Loft Apartments, ” but Maule changed it to read “Visit Philly Skyline Dot Com, ” a website he owned. (Second Am. Compl., ¶ 11; Ex. B.) Maule named the photograph “Projected Skyline 2008, ” posted it on his website and registered the picture with the United States Copyright Office on May 13, 2008. (Second Am. Compl., ¶¶ 12-13; Compl., Ex. D, ECF No. 1-7.)

         (Image Omitted)

         On September 27, 2015, Maule saw the Defendants' neon sign in the window of the Spruce Street Market. (Second Am. Compl., ¶ 14.) The sign is a condensed, less detailed rendering of the Philadelphia skyline. (Id. at ¶¶ 14-16; Compl., Ex. E, ECF No. 1-8.) It has no background but includes an outline of One Liberty Place, Two Liberty Place, the BNY Mellon Center, 1818 Market Street, the now-completed Comcast Center and the non-existent Mandeville Place. (Ex. E.) All of the buildings depicted on the sign are illustrated in bright red, with black lines outlining the floors and windows of the buildings. (Id.) The only exception is the Comcast Center, which is rendered entirely in white with grey lines delineating the shape of the building. (Id.) The sign does not feature any contrast in light or shadow, nor is there any sense of depth or scale between buildings, making the skyline appear flat. (Id.) The sign does not depict Franklin Field, the park, the Schuylkill Expressway or River, nor does it feature the billboard depicted in Maule's photograph advertising his website. (Id.)

         (Image Omitted)

         Maule believes that the Defendants' sign copied his photograph, particularly because it includes Mandeville Place. (Second Am. Compl., ¶¶ 14-16.) Additionally, Maule noticed a sticker on the back of the sign identifying Anheuser Busch as the owner of the copyright for the sign. (Id. at ¶ 18.) Maule subsequently discovered the same advertising sign at twenty other locations throughout Philadelphia. (Id. at ¶¶ 19-23.)

         II

         To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pled “allow[ ] the court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         Twombly and Iqbal require the Court to take three steps to determine whether a complaint will survive a motion to dismiss. See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, it must “take note of the elements the plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Next, it must identify the allegations that are no more than legal conclusions and thus “not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679). Finally, where the complaint includes well-pleaded factual allegations, the Court “should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. (quoting Iqbal, 556 U.S. at 679).

         This “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). “Conclusory assertions of fact and legal conclusions are not entitled to the same presumption.” Id. This plausibility determination is a “context-specific task that requires ...


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