Copyright Claims Board Rules in Favor of Defaulting Party

Last week, the Copyright Claims Board (CCB) handed down yet another default determination. However, this time, the decision favored the defaulting party, dismissing the claim without prejudice.

Stock photographer Florian Sommet filed the claim. She alleged that a company named Pleasure in Life LLC d/b/a Laser Facial Miami had taken a photograph of hers and used it to create posts and ads featured on their Instagram account.

However, Pleasure in Life (PIL) did not respond to the claim. Even though they were served with paperwork, they neither opted out of the case nor responded to the claim.

With no response, the CCB moved toward issuing a default judgment. However, despite Sommet showing clear infringement, the CCB sided with the defaulting party. The reason is a simple but common issue that could easily happen to anyone in Sommet’s position.

In the end, this case is a reminder to check all the details of your CCB filing, not just the copyright-related ones.

Background of the Case

The facts of the case are straightforward. Sommet is a professional photographer with a specialty in beauty photography. In early January 2021, Sommet learned through her licensing agency that a photo she took was being used without a license in two separate Instagram posts by Laser & Facials Med Spa.

She quickly registered the photo entitled “The Beauty Photograph.” According to Sommet’s direct party statement, she repeatedly contacted the company about the issue, but all the calls were ignored.

Sommet, through her attorney, filed the original claim on September 29, 2023. The CCB accepted the claim the same day and moved the case forward. Despite some issues with serving the paperwork, it was completed on October 24, 2023.

PIL never responded to the claim and never provided an opt-out. As such, the case moved into the “active phase” in late December.

Ultimately, the CCB found clear evidence of infringement. The board found that the posts used Sommet’s image without a license.

However, there was a problem. Sommet had filed the claim against PIL. But the Instagram account was for Laser & Facials Med Spa. It is unclear who owns that business. That’s because another LLC, Lasers & Facials Franchising, also operates from the same physical location.

To be clear, the two businesses have a great deal in common. They share the same business address and are owned and operated by the same two people. However, for the purposes of the CCB, they are still legally distinct entities.

To make matters even more confusing, two other businesses, Pleasures of the Sea and Global Personal Protective Equipment, share the same address and owners. Noting that four businesses could own Lasers & Facials Medical Spa, the CCB dismissed the claim.

Analysis of the Case

This is a challenging situation for any claimant. Knowing who to file a claim against is difficult; even lawyers can struggle when things get complicated.

Unfortunately, the CCB cannot help much in this area. While the board has gone to great lengths to streamline and simplify as much of the process as possible, it can’t help determine who to file a claim against.

Much of the time, that’s not a big deal. In most cases, it’s relatively simple. But here, it wasn’t.

As the board noted, George and Angelica Mohama operate at least four separate LLCs from the same address. It is unclear which LLC owns Lasers & Facials Medical Spa. Since they defaulted on the case, there was no opportunity to ask the owners for clarity.

Most likely, neither Sommet nor her attorney knew about all the businesses at this address when filing. While it’s not an entirely unusual situation, it’s rare enough that it’s an easy thing to overlook.

It’s an unfortunate situation. Luckily, it seems to be relatively rare for the board.

Bottom Line

The board seemed very sympathetic to Sommet. Not only did the board dismiss the case without prejudice, meaning that the Sommet could refile it (even with the CCB), but they also indicated that it was not their desire and that they had no choice.

It’s a frustrating situation for all involved. While I’ve been critical of some claimants in the past, this isn’t one of those times. Sommet and her attorney made compelling arguments and easily established the infringement. It was a technicality that tripped things up.

I hope that Sommet refiles the case. The CCB is perfect for this type of case. It’s a relatively small but clear-cut infringement, and both the claimant and the respondent benefit from going through the CCB.

The ending to this case is unfortunate. But the door is open to try again if Sommet opts to.

In the end, the sommet seems to have been more than reasonable and patient throughout this process. While I would like to see that rewarded, I know that isn’t how the system always works.

Hopefully, it does this time.