United States District Court, E.D. Pennsylvania
R. BRADLEY MAULE, Plaintiff,
ANHEUSER BUSCH, LLC, and EVERBRITE, LLC, Defendants.
J. PAPPERT, J.
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.
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.)
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.)
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.)
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 ¶¶
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.
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.
“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