Gamble V Tyson MSJ

Case 1:17-cv-06635-LAK-SN Document 58 Filed 04/19/18 Page 1 of 41
HOLLAND & KNIGHT LLP

Merri C. Moken
Marc L. Antonecchia
31 West 52nd Street
New York, NY 10019
(212) 513.3200
[email protected]
[email protected]

Daniel C. Neustadt
800 17th Street N.W. Suite 1100
Washington, DC 20006
(202) 955.3000
[email protected]
Attorneys for Defendants

Curved Light Productions LLC and
Neil deGrasse Tyson
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
DAVID GAMBLE,
Plaintiff, Case No.: 17-cv-06635 (LAK)(SJN)
v. MEMORANDUM OF LAW
CURVED LIGHT PRODUCTIONS LLC d/b/a

STARTALK, NEIL DEGRASSE TYSON, W.W.
NORTON & COMPANY INC., JODI SOLOMON
SPEAKERS BUREAU, INC. and JOHN DOES 1
through 10
Defendants.
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................4
1. GAMBLE PHOTOGRAPHS TYSON IN 2008 AND SENDS THE TYSON PHOTO
TO CLP ................................................................................................................................5
(A) BEGINNING IN 2009, GAMBLE LICENSED CLP’S USE OF THE TYSON PHOTO, AND
CLP USED THE PHOTO ON ITS WEBSITE AND SOCIAL MEDIA TO PROMOTE CLP ..............6
(B) CLP CREATES AND EMAILS A SIGNED TIFF OF THE TYSON PHOTO TO PROMOTE
CLP, BEGINNING IN JUNE 2013 ........................................................................................7
2. GAMBLE LICENSES THE TYSON PHOTO TO TYSON ...............................................7
3. GAMBLE SELLS HIS INTEREST IN CLP ON OCTOBER 17 2013, AND
BROADLY RELEASES ANY CLAIMS AGAINST TYSON AND CLP .........................8
4. GAMBLE DID NOT OBJECT TO CLP’S AND TYSON’S CONTINUED USE OF
THE TYSON PHOTO FOLLOWING THE SALE OF HIS MEMBERSHIP
INTEREST IN CLP ...........................................................................................................10
5. TYSON ASSISTS GAMBLE WITH LOCATING INFRINGERS AND
RECOVERING LICENSING FEES .................................................................................10
6. GAMBLE FIRST OBJECTS TO CLP’S OR TYSON’S USE OF THE TYSON
PHOTO IN APRIL 2017 ...................................................................................................12
7. IN APRIL 2017, GAMBLE INFORMS TYSON OF COMPENSATION FROM
THIRD PARTIES FOR UNAUTHORIZED USE OF TYSON PHOTO, AND
DEMANDS TYSON CEASE USE OF THE TYSON PHOTO (EXCEPT ON THE
HAYDEN PLANETARIUM SITE) ..................................................................................14
8. IN MAY 2017, GAMBLE’S COUNSEL DEMANDS THAT TYSON AND CLP
HALT SALE OF “UNAUTHORIZED HARD COPY PRINTS,” CEASE ALL USE
OF GAMBLE’S PHOTOGRAPHS, AND PAY PLAINTIFF $600,000 PLUS
ATTORNEYS’ FEES ........................................................................................................15
LEGAL STANDARD....................................................................................................................16
ARGUMENT .................................................................................................................................16
9. THE BROAD RELEASE SET FORTH IN THE MEMBERSHIP INTEREST
PURCHASE AGREEMENT BARS ALL CLAIMS AGAINST CLP AND TYSON ......16
10. NO PERSONAL LIABILITY ATTACHES TO TYSON FOR ACTS PERFORMED
AS A MEMBER OR AGENT OF CLP.............................................................................19
11. THE FIRST CAUSE OF ACTION SHOULD BE DISMISSED AS TO CLP
BECAUSE PLAINTIFF GRANTED CLP A LICENSE TO USE THE PHOTO TO
PROMOTE CLP ................................................................................................................20
12. THE FIRST AND SECOND CAUSES OF ACTION AS TO TYSON SHOULD BE

DISMISSED BECAUSE THE ALLEGATIONS THAT TYSON DIRECTLY,
CONTRIBUTORILY, OR VICARIOUSLY INFRINGED THE PHOTO ARE
IMPLAUSIBLE AND DEMONSTRABLY FALSE ........................................................23
(A) THE ALLEGATIONS OF DIRECT INFRINGEMENT ARE IMPLAUSIBLE .................................23
(B) THE ALLEGATIONS OF CONTRIBUTORY INFRINGEMENT ARE IMPLAUSIBLE, AND
TYSON LACKED THE REQUISITE KNOWLEDGE REGARDLESS ..........................................27
(C) THE LACK OF ANY FINANCIAL BENEFIT TO TYSON DIRECTLY ATTRIBUTABLE TO
THE ALLEGED INFRINGEMENT PRECLUDES VICARIOUSLY LIABILITY .............................29
13. THE THIRD CAUSE OF ACTION SHOULD BE DISMISSED AS TO CLP AND

TYSON BECAUSE NEITHER THE ALLEGATIONS NOR THE FACTS
SUPPORT A CLAIM FOR REMOVAL OF COPYRIGHT MANAGEMENT
INFORMATION................................................................................................................31
14. GAMBLE IS NOT ENTITLED TO STATUTORY DAMAGES OR ATTORNEYS’
FEES ..................................................................................................................................33
15. THE STATUTE OF LIMITATIONS BARS RECOVERY FOR INFRINGEMENTS
DISCOVERED, OR THAT SHOULD HAVE BEEN DISCOVERED, PRIOR TO
AUGUST 31, 2014 ............................................................................................................35
CONCLUSION ..............................................................................................................................35
ii
TABLE OF AUTHORITIES
Page(s)
Cases
A & M Records, Inc. v. Napster, Inc.,

239 F.3d 1004 (9th Cir.2001) ..................................................................................................27
Arista Records, LLC v. Doe 3,

604 F.3d 110 (2d Cir. 2010).....................................................................................................23
Arista Records LLC v. Lime Grp. LLC,

784 F. Supp. 2d 398 (S.D.N.Y. 2011)......................................................................................26
Caslterigg Master Investments Ltd. v. Charys Holding Co.,

No. 07 CIV. 9742 (GEL), 2008 WL 449690 (S.D.N.Y. Feb. 19, 2008)..................................15
Centro Empresarial Cempresa S.A. v America Movil, S.A.B. de C.V.,

17 N.Y.3d 269 (2011) ..............................................................................................................17
Cornelius v. United Parcel Serv., Inc.,

No. 11 CIV. 3206 GBD, 2012 WL 975053 (S.D.N.Y. Mar. 21, 2012) ...................................17
Faulkner v. Nat'l Geographic Enterprises Inc.,

409 F.3d 26 (2d Cir. 2005).......................................................................................................27
Gattoni v. Tibi, LLC,

No. 16 Civ. 7527 (RWS), 2017 WL 2313882 (S.D.N.Y. May 25, 2017) ...............................31
Graham v. James,
144 F.3d 229 (2d Cir. 1998)...............................................................................................19, 20
Innovative Networks, Inc. v. Young,

978 F. Supp. 167 (S.D.N.Y. 1997), aff'd sub nom. Innovative Networks Inc. v.
Satellite Airlines Ticketing Centers, Inc., 152 F.3d 918 (2d Cir. 1998) ..................................33
Karlson v. Red Door Homes, LLC,

611 F. App'x 566 (11th Cir. 2015) ...........................................................................................19
Keane Dealer Servs., Inc. v. Harts,

968 F. Supp. 944 (S.D.N.Y.1997)............................................................................................19
Latimer v. Roaring Toyz, Inc.,

601 F.3d 1224 (11th Cir. 2010) .........................................................................................19, 21
Marten Transp., Ltd. v. Plattform Advert., Inc.,

No. 14-2464-JWL, 2016 WL 1718862 (D. Kan. Apr. 29, 2016)...............................................6
iii
In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig.,

No. 07 CIV. 10470, 2013 WL 6869410 (S.D.N.Y. Dec. 30, 2013)...........................................6
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,

545 U.S. 913 (2005) .................................................................................................................28
Mosberg v. Nat'l Prop. Analyst, Inc.,

217 A.D.2d 482, 630 N.Y.S.2d 50 (1st Dep’t 1995) ...............................................................17
Peterson v. Kolodin,
No. 13 CIV. 793 JSR, 2013 WL 5226114 (S.D.N.Y. Sept. 10, 2013) ....................................33
Psihoyos v. John Wiley & Sons, Inc.,

748 F. 3d 120 (2d Cir. 2014)....................................................................................................34
Silberman v. Innovation Luggage, Inc.,

No. 01 CIV. 7109 (GEL), 2003 WL 1787123 (S.D.N.Y. Apr. 3, 2003) .................................33
Sparaco v. Lawler, Matusky, Skelly Engineers LLP,

313 F. Supp. 2d 247 (S.D.N.Y. 2004)......................................................................................25
Steele v. Bell,
No. 11 CIV. 9343 RA, 2014 WL 1979227 (S.D.N.Y. Mar. 28, 2014) ....................................33
Structured Capital Sols., LLC v. Commerzbank AG,

177 F. Supp. 3d 816, 834 (S.D.N.Y. 2016)..............................................................................16
Wells Fargo Bank Nw., N.A. v. Taca Int’l Airlines, S.A.,

247 F. Supp. 2d 352 (S.D.N.Y. 2002)......................................................................................15
William Wrigley Jr. Co. v. Waters,

890 F.2d 594 (2d Cir. 1989).....................................................................................................18
Young-Wolff v. John Wiley & Sons, Inc.,

No. 12-CV-5230 (JPO), 2016 WL 154115 (S.D.N.Y. Jan. 12, 2016) ...............................26, 28
Statutes
17 U.S.C. § 412 ..................................................................................................................32, 33, 34
17 U.S.C. § 504(c)(3).....................................................................................................................32
17 U.S.C. § 507(b) .........................................................................................................................34
17 U.S.C. § 1202(c) .......................................................................................................................31
iv
PRELIMINARY STATEMENT
This is a case of spurious, unfounded claims belied by documents in Plaintiff David
Gamble’s possession, and which appears to be nothing more than a protracted attempt to harass
and wrongfully procure payment from Curved Light Productions LLP (“CLP”) and Neil
deGrasse Tyson for their purpose of avoiding litigation fees – much like is seen in a patent troll
litigation. Indeed, the initial claims advanced in Gamble’s original complaint concerning fraud
and breach of contract were proved false by CLP and Tyson to Gamble’s counsel, and
unceremoniously dropped in his first amended complaint (“FAC”), all the while maintaining in
the FAC equally unfounded copyright claims against CLP and Tyson, predicated upon the
actions of two new defendants, W.W. Norton and Jodi Solomon Speaker’s Bureau.
Just a few days ago on April 16, 2018 during and after an unfinished 26(f) conference
with all defendants, Gamble’s counsel admitted he has no evidence of the allegations against
Norton and Jodi Solomon Speaker’s Bureau – largely their allegedly improper distribution of a
high resolution electronic version of a particular photograph Gamble took of Tyson (the “Tyson
Photo”) – and dismissed the amended complaint against each of them.1 The first and second
counts alleged in the FAC also require that CLP and Tyson wrongfully received a high resolution
electronic version of the Tyson Photo from Norton, and then wrongfully made use of that photo
directly, or indirectly through Jodi Solomon Speaker’s Bureau. The FAC alleges that the only
source of the high resolution Tyson Photo was Norton, thus absent evidence that Norton
provided that photo to Tyson or CLP or Jodi Solomon Speaker’s Bureau (and Gamble’s counsel
admitted having no evidence that Norton did so), neither Tyson nor CLP could have carried out
the first or second counts of the FAC on that basis alone. Even in the absence of such evidence
1
Moken Decl. ¶¶3, 23, Exs. C and N.
(and instead faced with evidence proving CLP and Tyson had just a low resolution version of the
Tyson Photo, that Gamble recognized was low resolution and that he had provided for each to
use) and also despite his counsel’s inability to articulate any credible basis on which to proceed
against them, Gamble is still advancing all causes of action against CLP and Tyson.
In the FAC, Gamble alleges, mostly upon information and belief, that Neil deGrasse
Tyson, a widely-respected astrophysicist, and CLP, a three-person partnership of which both
Tyson and Gamble were members, directly and indirectly engaged in copyright infringement
through use of a photograph that Gamble had taken of Tyson (the “Tyson Photo”) – a photo he
specifically took for marketing purposes of CLP and Tyson. Gamble’s allegations are
implausible and comprise: (1) that Tyson directed promoters of his public appearances to
wrongfully use the Tyson Photo, which had been used for the cover of a book published years
earlier, and (2) that Tyson personally contacted his publisher, W. W. Norton, to wrongfully
obtain an image of high enough resolution to be used on posters and even a billboard. Gamble’s
rewriting of history ignores (1) that he admits having granted CLP and Tyson a license to use the
Gamble Photo, and that he, at the earliest, attempted to revoke that license in April 2017; (2) that
he granted a broad release of all claims against CLP and Tyson, and that the allegations in the
FAC fall within the scope of that release.
Gamble fails to inform the Court that certain of these accused actions were undertaken by
non-defendant third parties and that he actually received compensation for their improper uses of
the Tyson Photo, in part through the kind assistance of Tyson and one-time co-defendant Jodi
Solomon Speakers Bureau. In advancing his unfounded assertions, Gamble also ignores both the
consent that he gave CLP and Tyson to use the Tyson Photo and the broad release that he gave to
the CLP surviving limited liability partnership and its remaining members upon the termination
2
of his membership. Gamble would thus have this Court be uninformed of and/or disregard the
very agreements to which he has never objected, and indeed from which he sought to and
actually did benefit.
The implausibility of Gamble’s claims is highlighted by the material facts for which there
is no genuine dispute – facts that Gamble omits in his First Amended Complaint (“FAC”):
• Gamble Consented to and Initiated CLP’s Use of the Photograph on CLP’s Website
and Social Media Channels: Gamble admits in writing that CLP’s use was licensed,
and did not attempt to rescind the license until April 2017.2
• Gamble Expressly Released All Claims Against both CLP and Tyson: In the
Membership Interest Purchase Agreement, pursuant to which Gamble sold his
membership interest in CLP, Gamble expressly released CLP and Tyson from any and all
claims, including therefore, the allegations of copyright infringement of Gamble’s FAC.
This release bars Gamble’s assertion of CLP and Tyson’s infringement in connection
with their use of the Tyson Photo at issue here.3
• Gamble Received Compensation For His Work: Gamble’s assertion that he never
received compensation for any of the alleged infringements is belied by Gamble’s own
correspondence demonstrating that Gamble secured licensing arrangements for many of
the alleged abuses, on certain occasions with assistance from Tyson.4
• CLP Distributed a TIFF file of an Autographed Photo, not Hard Copy Prints:
Gamble claims that CLP created and distributed more than a thousand autographed hard-
copy prints of the Tyson Photo. In fact, as explained multiple times by Tyson in email
correspondence to Gamble, the “prints” at issue was a digital file. The file was created at
Kinko’s by printing the electronic photo file on glossy paper (eight times), and then
scanning the best of the eight autographed print-outs to create a single electronic file for
digital distribution. In May 2017, Tyson sent Gamble the eight hard-copy printouts CLP
had to make the signed digital file (and emailed him the tracking number for the
delivery). Nonetheless, Gamble continues to perpetuate the “hard-copy print” allegations
in post-May 2017 demands and pleadings.5
This litigation already is littered with Gamble’s manufacture of false claims – claims
proved false by the express writings of the parties. Indeed, Gamble’s ill-fated original Complaint
2
See Matsos Decl. ¶16, Ex. H.
3
See Matsos Decl. Ex. G.
4
See Tyson Decl. ¶¶ 28, 30-33, Exs. E, O-Q.
5
See Simons Decl. ¶¶ 11–12, Ex. G.
3
asserted claims for fraud and breach of contract that Gamble ultimately withdrew based on
documentary evidence known to Gamble, as author or recipient, that completely contradicted
such claims. The re-packaged claims in the FAC suffer the same deficiency and from what
appears to be Gamble’s selective rendition of the facts – none more telling than Gamble’s
repeated references to the Membership Interest Purchase Agreement but his utter failure to
disclose to the Court that such agreement contained Gamble’s broad and sweeping release of
claims against CLP and Tyson.
STATEMENT OF FACTS
Defendant Neil deGrasse Tyson is the Director of the Hayden Planetarium, an
astrophysicist, author, television and radio personality, and a public speaker on various science-
related subject matters. 6 Plaintiff David Gamble is a professional photographer.7 Gamble asserts
he has earned income from his photography by issuing limited prints and via syndication of his
photos.8
In 2007, Gamble, Tyson, and non-party Helen Matsos (Executive Editor of Astrobiology
Magazine and a NASA employee) formed CLP for the purpose of creating and producing a radio
show called “StarTalk.”9 Tyson hosted the show, and Gamble was a producer, securing
broadcasting deals for the show’s distribution and otherwise handling “all aspects” of
production, such as the hiring of talent.10 Gamble also served as the primary photographer for
6
Moken Decl., Ex. A (First Amended Complaint (“FAC”)), ¶ 5 thereto; see generally Moken
Decl., Ex. D (profiling Tyson).
7
FAC ¶¶ 13-14.
8
Id. ¶¶ 15, 16, 44, 58.
9
Id. ¶¶ 17, 18, 21
10
Id. ¶¶ 24, 31.
4
CLP and often took photos at CLP events and StarTalk recordings for use on the website and in
social media.11
As further detailed below, in October 2013, Gamble sold his membership interest in CLP
and broadly released all “direct or indirect, known or unknown, accrued or unaccrued” claims, he
“ever had, now has, or can, shall, or may have in the future,” against CLP, Tyson, and Matsos
“arising out of any fact, incident, claim, injury, event, circumstance, matter or thing which has
happened, developed, or occurred” related to CLP, prior to December 31, 2016. There is no
dispute that almost all of the events recited in the FAC happened, developed, or occurred prior to
December 31, 2016.
1. Gamble Photographs Tyson in 2008 and Sends the Tyson Photo to CLP
While a member of CLP, Gamble oversaw the CLP website and social media channels
and took photographs of CLP co-hosts, guests, and personnel.12, 13 He regularly forwarded such
photos to Matsos and the CLP web designers for use on the CLP website and social media
channels.14 Gamble also regularly participated in meetings concerning the content and design of
the CLP website and social media channels.15 In 2008, Gamble took a photo of Tyson (the
“Tyson Photo”).16 Gamble provided the Tyson Photo on several different occasions to Heln
Matsos, on May 30, 2009, for use in CLP marketing and promotion, and to Tyson, for posting on
the “portraits” page of his Hayden Planetarium website.17
11
See Berland Decl. ¶¶ 19-24; Simons Decl. ¶ 3.
12
Berland Decl. ¶¶ 5-6; Abbott Decl. ¶¶ 9-10, Ex. D; Matsos Decl. ¶¶ 4, 6-7 , Exs. A, D, F
13
See, e.g., Beland Decl. ¶¶ 19-23, Exs. L-N; FAC ¶ 57.
14
Matsos Decl. ¶¶ 4, 13-14, Exs. A, F; Tyson Dec. ¶ 19, Ex. I.
15
Berland Decl. ¶¶ 4–18.
16
FAC ¶ 32, 36,72, Exhibit A thereto (registration providing creation date of 2008).
17
Matsos Dec. ¶ 6, Ex. C; Tyson Decl., ¶¶ 11-12, Ex. D.
5
(a) Beginning in 2009, Gamble Licensed CLP’s Use of the Tyson Photo, and
CLP Used the Photo on its Website and Social Media to Promote CLP
On May 30, 2009, Helen Matsos, Gamble, and Brian Abbott were collaborating on the
website and social media outlets for CLP. As part of this effort, Gamble provided various logos
and numerous photographs he had taken for use in CLP’s marketing via these media. The set of
logos and photographs Gamble provided via e-mail on May 30, 2009 for CLP’s use included the
Tyson Photo, which he sent to his CLP partner, Helen Matsos.18 Matsos forwarded the Tyson
Photo to CLP’s web designer, who uploaded it to CLP’s home page, where it was featured for
months, including while Gamble was a member of CLP.19 Gamble also oversaw CLP’s social
media channels, and the Tyson Photo was displayed on those sites for several years, including
while Gamble was a member of CLP.20 The Tyson Photo was displayed on CLP social media
channels as part of a multi-image banner, without attribution to Gamble, and without objection
from Gamble.21 Gamble was aware of the use of the Tyson Photo on the CLP website and
18
Matsos Decl. ¶¶ 6–8, Ex. C, D.
19
Id.; Tyson Decl. ¶¶ 17-18, Exs. G-H; Moken Decl., Ex. E. Courts may take and have taken
judicial notice of internet archives. In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig.,
No. 07 CIV. 10470, 2013 WL 6869410, at *4 (S.D.N.Y. Dec. 30, 2013) (citing Juniper
Networks, Inc. v. Shipley, 394 Fed. App'x 713, at *1 (Fed.Cir.2010) (indicating that the Internet
Archive may be an appropriate source for judicial notice) (citing Martins v. 3PD, Inc., No. 11
Civ. 11313, 2013 U.S. Dist. LEXIS 45753, 2013 WL 1320454, at *16 n.8 (D. Mass. Mar. 28,
2013) (taking judicial notice of “the various historical versions of a website available on the
Internet Archive at Archive.org as facts readily determinable by resort to a source whose
accuracy cannot reasonably be questioned”). At least one federal court has held that a court must
take judicial notice of the Wayback Machine, if, pursuant to Fed. R. Evid. 201, a party requests it
and provides the court with the necessary information. Marten Transp., Ltd. v. Plattform
Advert., Inc., No. 14-2464-JWL, 2016 WL 1718862, at *4 (D. Kan. Apr. 29, 2016) (reviewing
submission of screenshots from Wayback Machine and concluding “that the requirements for
judicial notice under Rule 201 are satisfied here, which means that the Court must take judicial
notice as requested by Marten.”) (emphasis in original) (citing O'Toole v. Northrop Grumman
Corp., 499 F.3d 1218 (10th Cir. 2007).
20
Berland Decl. ¶¶ 5-6; Abbott Decl. ¶¶ 9-10, Ex. D; see Moken Decl., Exs. F-G.
21
Moken Dec., Exs. F-G.
6
social media, and had provided it to CLP for that purpose.22 Prior to April 18, 2017, Gamble
never objected to or asked for CLP to cease such use.23
(b) CLP Creates and Emails a Signed TIFF of the Tyson Photo to Promote CLP,
Beginning in June 2013
In addition to displaying the Tyson Photo on its website and social media pages, CLP
issued autographed digital copies of the work, via patreon.com, to supporters of CLP’s StarTalk
program (the “Signed TIFF”).24 The Signed TIFF was created in June 2013 by printing on
glossy paper the Tyson Photo digital file that Gamble had provided. The glossy was then signed
by Tyson, rescanned (at a high resolution) as a new digital file, and emailed to all supporters who
qualified for the gift. The Signed TIFF was first distributed in June 2013 while Gamble was a
member of CLP and without his objection.25
2. Gamble Licenses the Tyson Photo to Tyson
Gamble provided Tyson with a copy of the Tyson Photo and expressly licensed Tyson to
display the work on his pages of the Hayden Planetarium website.26 Tyson began displaying the
Tyson Photo on the Hayden Planetarium site as early as November, 2011.27 The work was
displayed along with other professional photos of Tyson on the PHOTOS page of Tyson’s
22
Declaration of Laura Berland, ¶¶25, 27 and Exhibit P thereto; Declaration of Brian Abbott, ¶7
and Exhibit C thereto; Declaration of Helen Matsos, ¶¶4, 6 and Exhibit C thereto; Declaration of
Neil DeGrasse Tyson ¶18 and Exhibit H; Declaration of Sunny Cobain, ¶7 and Exhibit C thereto.
23
Declaration of Helen Matsos, ¶16; ; Declaration of Neil DeGrasse Tyson, ¶¶20, 27, 34.
24
Moken Decl., Ex. H.
25
See Tyson Decl., Ex. U (Tyson writes Gamble that the Signed TIFF was sent to 71 CLP
supporters beginning June 7, 2013); Id., Ex. T (Tyson: “And, a further detail, modifying and
clarifying something I said earlier – I signed eight copies of the phot that had each been printed
on glossy paper at FedEx/Kinkos. These photos were scanned and one of them was sent digitally
to the 1470 plus 126 people. We are still in possession of the 8 “originals”. )
26
FAC ¶ 38. Gamble reaffirmed the license in mid-November, 2015. See Tyson Decl, ¶¶ 13-15,
Ex. E. (Gamble to Tyson: “You have the correct permission /copyright info” on the “Photos”
page of the Hayden Planetarium website; “That’s fine to leave 137kb [image] on your site.”).
27
Tyson Decl. ¶ 11, Ex. D.
7
section of the Hayden Planetarium site.28 The PHOTOS page was accessible via a link on
Tyson’s HOME page on the Planetarium site with the hypertext “PRESS KIT”.29 Tyson
displayed the Tyson Photo with a caption that attributed the photo to Gamble and provided
Gamble’s contact information.30 Throughout the period of time it was posted on the website,
both before and after Gamble’s waiver of all claims (infra Section 3.), past and future, known
and unknown, promoters and journalists used the Tyson Photo to promote appearances featuring
Tyson and to report on Tyson.31 Despite having given permission, time after time, for Tyson to
include the credited Tyson Photo on the Hayden Planetarium site, along with instructions to third
parties to contact Gamble to obtain permission for its use, and despite Gamble’s knowledge that
third parties were using his photo without permission, Gamble now incredibly attempts to hold
Tyson responsible for third-parties’ improper use of that photo.
3. Gamble Sells His Interest in CLP on October 17 2013, and Broadly Releases Any
Claims Against Tyson and CLP
On October 17, 2013, Gamble executed a Membership Interest Purchase Agreement
(“Purchase Agreement”), pursuant to which he sold his membership interest in CLP to Tyson
and Matsos.32 Gamble fully, forever, irrevocably and unconditionally released Tyson, Matsos
and CLP, and their representatives and agents (the “Purchasing Members Releasees”), from any
claims, damages or liability of every kind and nature whatsoever, known or unknown, accrued or
unaccrued, that Gamble ever had, then had or may have in the future against the Purchasing
Members Releasees by reason of, on account of, or arising out of any fact, event, matter or thing
28
Moken Decl, Ex. K.
29
Id.
30
Tyson Decl. ¶ 12, Ex. D.
31
Tyson Decl., ¶ 23.
32
Matsos Declaration, Exh. G (Membership Interest Purchase Agreement, dated October 17,
2013 (“Purchase Agreement”)).
8
that happened or developed “before the closing of the transactions contemplated by the
Agreement” with respect to any claims Gamble may have against the Purchasing Members
Releasees related to CLP, its operations and any fees or payments for any services rendered.33
The transactions contemplated by the Agreement include the Closing Cash Payment
(Section 1.2(a)), a 2014 Cash Payment (Id.), and three Profits Payments (Section 1.2(b)), the last
of which was drafted to close as late as five business days after “the delivery by the Company of
Schedules K-1 to the Purchasing Member for the fiscal year ending December 31, 2016”
33
Id., Section 5.1:
… Selling Member [Plaintiff] [and related parties] (collectively, the “Selling

Member Releasors”) hereby fully, forever, irrevocably and unconditionally
release and discharge the Purchasing Members [Tyson and Matsos] and their
respective family members, heirs, administrators and assigns and the Company
[CLP], its managers, members, directors, officers, employees and their agents and
representatives (collectively, the “Purchasing Members Releasees”) of and from
any and all claims, counterclaims, charges, complaints, demands, actions,
causes of action, suits, remedies, rights, sums of money, costs, losses, covenants,
contracts, controversies, agreements, promises, damages, obligations, liabilities
and expenses (including reasonable attorneys’ fees and costs), of every kind and
nature whatsoever, whether direct or indirect, known or unknown, accrued or
unaccrued, liquidated or unliquidated, either at law, in equity, or mixed, whether
statutory, common, federal, state, local or otherwise under the laws of any
jurisdiction, which the Selling Member ever had, now have, or can, shall, or
may have in the future against the Purchasing Members, the Company or any
other Purchasing Members Releasees by reason of, on account of, or arising out
of any fact, incident, claim, injury, event, circumstance, matter or thing which
has happened, developed, or occurred, of any kind of nature whatsoever,
before the closing of the transactions contemplated by this Agreement with
respect to, related to or arising out of (i) his ownership of the Purchased Interests
or any equity interest in the Company or any rights or obligations of the Purchasing
Members under the Operating Agreement, or (ii) any right to acquire any equity
interest in the Company under the Operating Agreement or otherwise, and/or (iii)
any other claims he may have against Purchasing Members Releasees related
to the Company, its operations and any fees or payments for any services
rendered; other than claims relating to the representations, warranties and
covenants of the Purchasing Members contained in this Agreement.
9
(Section 1.2(b)(iii).34 The Agreement also contemplated transactions in the form of Referral Fee
Payments as late as December 31, 2016.35 On March 26, 2015, the parties entered into an
Amendment to the Purchase Agreement. This Amendment ratified the Purchase Agreement
Release36 and, just like the Purchase Agreement, did not address the use or cessation of CLP or
Tyson’s use of the Tyson Photo (or any other photos provided by Gamble to CLP prior to
October 17, 2013). Via this Release, Gamble thereby waived any ability to legally assert the
claims (even if taken as true, which the evidence set forth herein demonstrates them not to be)
against Tyson and CLP that he alleges in his FAC.
4. Gamble Did Not Object to CLP’s and Tyson’s Continued Use of the Tyson Photo
Following the Sale of His Membership Interest in CLP
Following the execution of the Purchase Agreement, CLP continued to use the Tyson
Photo on its website and social media channels.37 CLP also continued to use the other photos
taken and submitted by Gamble to CLP for promotional use.38 Tyson’s display of the Tyson
Photo on the Hayden Planetarium website also continued.39 Indeed, there is no dispute that
Gamble expressly affirmed his license of the Tyson Photo to Tyson in November 2015, and
again in April, 2017, years after selling his interest in CLP.40
5. Tyson Assists Gamble With Locating Infringers and Recovering Licensing Fees
In November, 2015, despite having no obligation to do so, Tyson alerted Gamble to what
turned out to be an unauthorized use of the Tyson Photo for a highway billboard to promote an
34
Id.
35
Id., Section 1.2(d).
36
Id., Section 5 (“Except as set forth in this Amendment, the Purchase Agreement is ratified and
confirmed in all respects and shall remain in full force and effect.”)
37
Moken Decl., Exs. E-G.
38
Id.
39
See Tyson Decl., Ex. E (Tyson sends links to use on Hayden Planetarium website, and Gamble
affirms such use is acceptable and licensed.)
40
See Tyson Decl. ¶¶ 13-16, Exs. E-F.
10
upcoming Tyson appearance – “An Evening With Neil deGrasse Tyson” – at Foxwoods Resort
Casino, in Ledyard, Connecticut.41 When Gamble informed Tyson that the use appeared to be
unauthorized, Tyson offered to help locate the user with the assistance of Tyson’s speaking
agent, Defendant Jodi Solomon Speakers Bureau.42 Solomon ultimately connected Gamble with
the promoter of the show, and Gamble recovered $600 in fees for the billboard use.43
Notwithstanding these facts, it is this billboard use that Gamble maintains Tyson was behind, and
for which, all without evidence, Gamble asserts Tyson wrongfully obtained a high resolution
version of the Tyson Photo from co-defendant W.W. Norton & Company.44
Solomon also helped Gamble recover fees for the unauthorized use of the Tyson Photo by
the Straz Center, in Tampa, Florida to promote a November, 2016 Tyson lecture.45 The Straz
Center settled with Gamble for $1050, for “usage without permission of a license to use” by the
41
Tyson Decl. ¶¶ 28-29, Exs. E, N.
42
Tyson Decl., ¶¶ 28, 30, Ex. E.
43
Tyson Decl. ¶ 31, Ex O.
44
On April 16, 2018, counsel for Gamble, Martin Novar, was challenged by counsel for all
named defendants to demonstrate any evidence underlying the allegations set forth in the
complaint. Counsel for Gamble was unable to do so. In view of this, and in view of being
unable to substantiate the possession of a high resolution version of the Tyson Photo by Tyson or
CLP, or provision of a high resolution of the Tyson Photo to Dr. Tyson, by Norton, Jodi
Solomon, or anyone else (indeed, the FAC ¶ 63 states “On information and belief, Tyson had
obtained a high resolution image file from Norton, since Gamble had never provided such a file
to Tyson or anyone else at CLP.”) see also ¶¶78-80, counsel for Gamble agreed to dismiss the
complaint against Norton and Jodi Solomon, but inexplicably pursue the unfounded claims
(claims contradicted by the evidence discussed herein, and in part shared with counsel for
Gamble) against Tyson and CLP. This is particularly perplexing, since as set forth in those
paragraph, Gamble’s first Count rests on his assertion that Jodi Solomon Speaker’s Bureau
and/or Tyson and/or CLP wrongfully received a copy of a high-resolution Tyson Photo from
Norton. The voluntary dismissal of Norton and Jodi Solomon Speaker’s Bureau in and of itself
requires recognition that Gamble has no evidence of his First Cause of Action against CLP and
Tyson, that requires a finding in Tyson and CLP’s favor on this Count. See Moken Decl. ¶¶ 13-
24, Ex. C.
45
Tyson Decl. ¶ 32, Ex. P.
11
Straz Center, Creative Loafing Tampa and The Bradenton Herald. Gamble calculated his
recovery fee “based on [his] recent settlement for the same type of usage.”46
6. Gamble First Objects to CLP’s or Tyson’s Use of the Tyson Photo in April 2017
Gamble earns a living from syndication of his photos (FAC, ¶ 44), and takes “unlicensed
usage very seriously.” It was not until April, 2017, however, that Gamble – for the first time –
objected to CLP or Tyson regarding their use of the Tyson Photo.47 And it was not until June 8,
2017 that Tyson applied for a copyright registration of the Tyson Photo.48 Even more striking is
that Gamble, when first providing photos to CLP for use on the website and related social media,
did not even seek the inclusion of a copyright notice, attribution to himself, or inclusion of
information for the purpose of contacting him to procure permission to use the photos. Indeed,
no such information was attached to any photographs provided by Gamble to CLP or Tyson, and
only was attached thereto on the initiative of CLP and/or Tyson.49
By email dated April 19, 2017 (actually sent April 18, 2017) addressed to CLP and to
“Partners, Neil de Grasse Tyson . Helen Matsos,” Gamble requested that CLP “Please cease to
use and remove on all applicable photographs from the Startalk Radio Website and other
websites associated to Startalk through CLP LLC as of the time and date of this email.”50
Plaintiff continued:
My leaving the management in Nov. 2013 [sic] , when the agreement to sell was
signed , selling my shares to you both as my former partners . Meant that Startalk
and CLP .LLC lost any rights to the usage with my formal leaving of the company.
I had assumed the Company had taken a similar view in honoring this and had
moved on to new material to replace my work. This has not happened.
Up until that date of sale , permission to use was allowed by me as copyright holder
46
Id.
47
See, e.g., Tyson Decl. ¶¶ 13, 20, 34-36, Exs. R-S.
48
FAC, Ex. A.
49
See Berland Decl. ¶ 24, Exs. L-N; Simons Decl., Ex. A; Moken Decl., Ex. E.
50
Tyson Decl., Ex. R.
12
on essentially the use on website as I still was a full partner and as such It
represented my own financial self interest to allow such usage . .
Of course my partners benefiting in CLP , too from my ability and occupation as

a professional photographer. To help to promote the Startalk Brand and Neil
Tyson.. With no actual cost to them or the company.
As partner I had access to business to monitor my work and to allow when it was
in my best interests as part owner of the Show Startalk.
The continued use after 2013 and after Dec 31st 2016 to the present day is the
breach of copyright.51
Tyson, on behalf of CLP, immediately responded:
Upon learning that you object to [the Tyson Photo’s] continued use in the service
of CLP, we have removed all traces of the photo from our web presence. Once
again, we think we got them all, but if you see one, don’t hesitate to let us know.52
CLP’s response discussed the Signed TIFF that had been offered to “Patreon” supporters of
StarTalk, and assured Gamble that, “According to your broader wishes, this image is now no
longer offered in this capacity.”53 In reply, Gamble informed CLP, “Making a print or giving
permission to do so is not permitted at all.”54
Gamble appeared to be proceeding on the misunderstanding that the Signed TIFF had
been distributed as hard-copy prints.55 Tyson endeavored to correct Gamble’s misperception:
And, a further detail, modifying and clarifying something I said earlier — I signed
eight copies of the photo that had each been printed on glossy paper at
FedEx/Kinkos. These photos were scanned and one of them was sent digitally to
the 1470 plus 126 people. We are still in possession of the 8 “originals”.56
51
Id. (errors in original).
52
Tyson Decl., Ex. U.
53
Id.
54
Id.
55
Id.
56
Tyson Decl., Ex. T.
13
CLP shipped the eight “originals” to Gamble on May 2, 2017.57
7. In April 2017, Gamble Informs Tyson of Compensation From Third Parties for
Unauthorized Use of Tyson Photo, and Demands Tyson Cease Use of the Tyson
Photo (Except on the Hayden Planetarium Site)
On April 18, 2017, Gamble sent an email to Tyson with respect to his use of the Tyson
Photo, demanding that “A Cease to use on all websites and print and other formats must happen
immediately.”58 Gamble further wrote: “I am and [sic] getting compensation from those who
have admitted a breach of copyright [of my picture of you]. Others I am in the process of chasing
and some as below are claiming it came from you and your press kit.”59 In the referenced
correspondence, the alleged infringer had responded to Gamble: “Yes, digital press kit. Not sure
on source, as I didn’t work on the story, though typically these come from the promoter.”60
Tyson responded to Plaintiff’s email in little over an hour, writing:
On my AMNH website, on a page titled “portraits” (itself under a heading called

“photos”, itself under a heading called “”press kit”) is a thumbnail of yours (among
13 other thumbnails). We’ve been careful to indicate under each photo who to
contact if a person is interested in using it. And it has not been a problem with
others on the site.
…
No photographer should have to spend creative time chasing down such abuses, so
I’m happy to do what I can on my end to minimize that. I could, for example,
remove the hi-res download link as a force to contact you.
…
I can contact my speaking manager to help you track down abuses of the telescope
photo from past public talks I’ve given, but it’s not every talk, and I had presumed
that the few places (surely less than 10%) that did use the image made proper
contact with you. So if if [sic] you can document precisely where that **did
not**happen, I’d be happy to explore what I can do on my end.
…
57
Simons Decl., Ex. G.
58
Tyson Decl., Ex. S.
59
As discussed above, Tyson maintains a link on his Hayden Planetarium site with the hypertext
“PRESS KIT,” which directs to a web page where portraits of Tyson are displayed, with
attribution and contact information. Tyson sent Gamble a link to this page in November, 2015,
and asked whether his display of the Tyson Portrait should be altered. Gamble responded that
none was needed. Tyson Decl., Ex. E.
60
Id. (emphasis added).
14
What is in the long-term interest of the photo itself? Complete removal from my
site? Or appearance on the site with the occasional pain of tracking down
transgressors, but with actual real income from legitimate commercial use?
Gamble ultimately agreed that a thumbnail image of the Tyson Photo could remain on the
Hayden Planetarium site, with the extra line, “Copyright owned David Gamble.”61 Gamble also
acknowledged years earlier that the Tyson Photo on the Hayden Planetarium site, which Tyson
repeatedly referred to a “high res”, was indeed not “high res” at just 137kb, stating “That still is
low res for real usage.”62
8. In May 2017, Gamble’s Counsel Demands That Tyson and CLP Halt Sale of
“Unauthorized Hard Copy Prints,” Cease All Use of Gamble’s Photographs, and
Pay Plaintiff $600,000 Plus Attorneys’ Fees
On May 24, 2017, Gamble’s counsel sent a letter demanding compensation from Tyson
and CLP based on the allegation that they had sold and were currently selling “unauthorized hard
copy prints” of the Tyson Photo.63 Gamble knew that these allegations were baseless because
eight “originals”, only one of which was selected to produce the Signed TIFF, had been
delivered to Gamble less than three weeks earlier, and Tyson had explained to Gamble,
repeatedly, that there had never been any sale of hard copy prints.64
Gamble, on June 8, 2017, applied for and ultimately obtained a copyright registration in
the Tyson Portrait.65
On June 21, 2017, CLP and Tyson, through counsel, responded that the disputed use was
subject to an implied, non-exclusive license, that any claims against Tyson or CLP were
separately released at the time Plaintiff sold his interest in CLP, and that the examples of alleged
61
Tyson Decl., Ex. T.
62
Tyson Decl., Ex. E.
63
Moken Decl., Ex. S.
64
Tyson Decl., Ex. T.
65
FAC, Ex. A.
15
infringement set forth in the demand letter reflected use by third parties beyond Tyson’s or
CLP’s control.66
LEGAL STANDARD
Summary judgment is appropriate where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party
opposing a motion for summary judgment must “produce specific facts indicating that a genuine
factual issue exists” and cannot rely on “a scintilla of evidence” or evidence that “is merely
colorable, or is not significantly probative” Wells Fargo Bank Nw., N.A. v. Taca Int’l Airlines,
S.A., 247 F. Supp. 2d 352, 360 (S.D.N.Y. 2002).
“[W]here it is clear that the [opposing party] cannot defeat the motion by showing facts
sufficient to require a trial for resolution, summary judgment may be granted notwithstanding the
absence of discovery.” Id. at 360. To overcome a pre-discovery motion for summary judgment,
the opposing party “must provide the Court with some reason to think that postponing resolution
of the summary judgment pending discovery serves any purpose other than delay. Caslterigg
Master Investments Ltd. v. Charys Holding Co., No. 07 CIV. 9742 (GEL), 2008 WL 449690, at
*2 (S.D.N.Y. Feb. 19, 2008).
ARGUMENT
9. The Broad Release Set Forth in the Membership Interest Purchase Agreement Bars
All Claims Against CLP and Tyson
Gamble asserts claims against CLP and Tyson for copyright infringement, through a
chain of activities purported to have been carried out upon defendant Norton’s improper
provision of a high resolution version of the Tyson Photo to CLP and/or Tyson and/or Jodi
Solomon Speaker’s Bureau, in purported violation of Norton’s (unproduced) contract with
66
Moken Decl., Exs. T, U.
16
Gamble (First Claim) and removal of copyright management information (Third Claim), and
against Tyson for secondary copyright infringement (Second Claim). Even if there was validity
to any of these claims, the release contained in Article 5, Section 5.1 (the “Release”) of the
Membership Interest Purchase Agreement serves as a complete bar to Gamble’s prosecution
thereof and warrants dismissal of the action as to CLP and Tyson.
By and through the Purchase Agreement, dated October 17, 2013,67 Gamble fully released
CLP and Tyson from all claims, including future and unaccrued claims, arising out of anything
related to CLP that occurred prior to December 31, 2016 (i.e., the latest closing date of any
“transactions contemplated by the Agreement”).68 As held by the New York Court of Appeals, “a
valid release constitutes a complete bar to an action on a claim which is the subject of the release.”
Centro Empresarial Cempresa S.A. v America Movil, S.A.B. de C.V., 17 N.Y.3d 269 (2011).
Moreover, a “release may encompass unknown claims, including unknown fraud claims, if the
67
The Purchase Agreement is governed by New York law. Matsos Decl., Ex. G (Purchase
Agreement, Section 8.4) (“This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York, without giving effect to such State’s
principles governing conflicts of law.”)
68
The Purchase Agreement contemplates multiple transactions beyond the Closing Cash
Payment (delivered October 17, 2013), including future transactions, such as a 2014 Cash
Payment and three Profits Payments, and conditional transactions, including the Referral Fee
Payments and the contemplated third-party transactions on which they depend. The unambiguous
language “transactions contemplated by the Agreement” encompasses all of the foregoing
contemplated transactions. See, e.g., Structured Capital Sols., LLC v. Commerzbank AG, 177 F.
Supp. 3d 816, 834 (S.D.N.Y. 2016) (dismissing argument that sought to construe the phrase
“Transactions contemplated by this Agreement” to exclude future, “abstract” transactions, and
holding that such argument “contradicted the ‘plain language’ of the” phrase, especially where
the agreement at issue repeatedly used “Transaction” to refer to “possible Transaction[s]” and
transactions “that ha[d] not actually been executed”). Plaintiff was cognizant of the December
31, 2016 closing date. See FAC ¶ 46 (referring to “remaining contingent payments and a
termination deadline of December 31, 2016”); FAC ¶¶ 53-55 (alleging that Plaintiff “started
investigating the use of the Tyson Portrait” … “[a]fter the December 31, 2016 deadline for
payment pursuant to the Amended Agreement passed”); Tyson Decl., Ex. 35 (“The continued
use after 2013 and after Dec 31st 2016 to the present day is the breach of copyright.”).
17
parties so intend” as well as “future” claims. Id. (considering release that reached “all manner of
actions…whatsoever…whether past, present or future, actual or contingent….”); see also
Cornelius v. United Parcel Serv., Inc., No. 11 CIV. 3206 GBD, 2012 WL 975053, at *1 (S.D.N.Y.
Mar. 21, 2012) (in enforcing an agreement releasing one party from “all known or unknown claims,
promises, causes of action, or similar rights of any type,” the court rules that “[i]t is well settled
that ‘[a] release freely entered into that clearly waives a right to pursue a cause of action is
binding.’”); Mosberg v. Nat'l Prop. Analyst, Inc., 217 A.D.2d 482, 485, 630 N.Y.S.2d 50, 52 (1st
Dep’t 1995) (enforcing settlement agreement that released one party from “‘all manner of actions,
claims, causes of action, allegations or rights whatsoever,’ including ‘any and all suits, claims,
demands, debts, liabilities, obligations, promises or controversies ... including Unknown
Claims’”).
There is no issue of disputed fact that each of the purportedly infringing acts “happened,
developed, or occurred” prior to January, 2017, and are thus expressly barred by the Release:
• Gamble emailed the Tyson Photo to CLP for use on the CLP website at least as early as
May 30, 2009;69
• CLP initiated its display of the Tyson Photo on the CLP website, without attribution to
Gamble, at least as early as December 20, 2010;70
• CLP initiated its display of the Tyson Photo on Facebook at least as early as August 8,
2012;71
• CLP initiated its display of the Tyson Photo on YouTube at least as early as July 8, 2013;72
• CLP created and initiated its distribution of the Signed TIFF at least as early as June,
2013;73
69
Matsos Decl., Ex. D.
70
Tyson Decl., ¶ 17, Ex. G.
71
Moken Decl., Ex. F.
72
Moken Decl., Ex. G.
73
Tyson Decl., Ex. U (Tyson writes Gamble that the Signed TIFF was sent to 71 CLP supporters
beginning June 7, 2013). See fn. 17, supra.
18
• Tyson initiated display of the Tyson Photo on the “Portraits” or “Photos” page of his
section of the Hayden Planetarium website at least as early as November 11, 2011;74, 75
• Third parties made unauthorized use of the Tyson Photo for promotion or coverage of
Tyson appearances, without attribution to Plaintiff, at least as early as 2014.76
Accordingly, the Court should grant summary judgment dismissing all claims as to CLP
and Tyson.
10. No Personal Liability Attaches to Tyson for Acts Performed as a Member or Agent
of CLP
The Release acts as a total bar to all claims alleged in the FAC. Even if Plaintiff had not
released Defendants from all liability, no liability should attach to Tyson personally for his
efforts to promote CLP.
The FAC contains multiple allegations that Tyson should be he held personally liable for
activities he engaged in to promote CLP or StarTalk.77 However, Tyson cannot be held
personally liable for such acts. “New York courts are reluctant to disregard the corporate entity,”
and New York “allows individuals to incorporate for the very purpose of avoiding personal
liability.” William Wrigley Jr. Co. v. Waters, 890 F.2d 594, 600–01 (2d Cir. 1989) (the piercing
of the corporate veil may be justified “only when it can be demonstrated that the ‘corporate form
has been used to achieve fraud, or when the corporation has been so dominated by an individual
… and its separate identity so disregarded, that it primarily transacted the dominator’s business
rather than its own and can be called the other’s alter ego.”).
74
Tyson Decl., ¶¶ 11-12, Ex. D.
75
Because Tyson is the public face (and voice) of StarTalk, any claims related to promotion or
coverage of Tyson’s media appearances or other public talks or performances are “related to the
Company.”
76
Tyson Decl., Ex. S (Gamble to Tyson: “This is one of several publications I am having to deal
with for compensation for breach of my copyright in 2016 and 2017 too. Some 2014 by the
way.”)
77
See, e.g., FAC ¶¶ 77, 86, 88.
19
Plaintiff cannot establish any facts to support a claim that CLP was a mere “alter ego” of
Tyson or that Tyson abused the corporate form of CLP to commit fraud or the like. Accordingly,
no personal liability should attach to such actions, and summary judgment on the first cause of
action should be entered in favor of Tyson.
11. The First Cause of Action Should Be Dismissed As to CLP Because Plaintiff
Granted CLP a License To Use the Photo to Promote CLP
A license is a complete defense to a claim of copyright infringement. Keane Dealer
Servs., Inc. v. Harts, 968 F. Supp. 944, 947 (S.D.N.Y.1997); see Graham v. James, 144 F.3d
229, 236 (2d Cir. 1998) (“A copyright owner who grants a nonexclusive license to use his
copyrighted material waives his right to sue the licensee for copyright infringement.”). A
nonexclusive license may be implied from conduct. See Keane, 968 F. Supp. at 947. The terms
of an implied license, like its existence, depend on the intent of the parties as evidenced by the
“totality of the parties’ conduct,” including lack of objection. 3 Nimmer on Copyright §
10.03[A]; see Keane Dealer, 968 F.Supp. at 947 (“consent given in the form of mere permission
or lack of objection is also equivalent to a nonexclusive license and is not required to be in
writing.”)
The undisputed facts demonstrate Gamble’s intent that the license not be limited in
duration. See Karlson v. Red Door Homes, LLC, 611 F. App'x 566, 571 (11th Cir. 2015),
quoting Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1235 (11th Cir. 2010) (an implied license
may be limited “only if that limitation is expressly conveyed when the work is delivered”).
Gamble provided the Tyson Photo to CLP without expressing any limitation on the duration of
its use, and CLP openly used the Tyson Photo for years before Gamble sold his interest in CLP,
without objection by Gamble. Indeed, while a member of CLP, Gamble oversaw the content of
its website and social media channels, and thus not only acquiesced to CLP’s use but actually
20
directed it. In his April 18, 2017 letter, Gamble affirmed that he had granted CLP a license prior
to any of the allegedly infringing acts set forth in the FAC: “Up until [October 17, 2013]
permission to use was allowed by me as copyright holder on essentially the use on website as I
still was a full partner and as such It represented my own financial self interest to allow such
usage . .”78
After Gamble sold his interest in CLP, CLP continued to openly use the Tyson Photo for
more than three years without objection by Gamble. Gamble’s conduct with respect to the Tyson
Photo was consistent with his conduct pertaining to other photos taken by Gamble and provided
to CLP. After Gamble left CLP, he did not interpose any objection as to CLP’s use of the Tyson
Photo or other photographs. There is no reference to the photographs or more specifically,
discontinuation of CLP’s use of the Tyson Photo, in the Purchase Agreement or the Amendment
thereto. CLP’s implied license to use the Tyson Photo remained in full force and effect at least
until Gamble’s purported attempt to rescind the license on April 18, 2017, immediately after
which CLP ceased all use of the Tyson Photo.79 Graham v. James, 144 F.3d 229, 237-38 (2d
Cir. 1998) (rescission of a license agreement does “not occur automatically without some
affirmative steps on [the licensor’s] part”).
With respect to the scope of the license, the totality of the parties’ conduct evidences that
the implied license embraced CLP’s social media use of the Tyson Photo and the email
distribution of a signed digital image file (i.e., the Signed TIFF). Gamble provided the Tyson
Photo to CLP without any express limitation on its use. See Latimer, supra. (“An implied license
will be limited to a specific use only if that limitation is expressly conveyed when the work is
78
Tyson Decl., Ex R (errors in original).
79
Tyson Decl., Ex. U (“Upon learning that you object to its continued use in the service of CLP,
we have removed all traces of the photo from our web presence.”).
21
delivered.”) CLP – under Gamble’s direction – used the Tyson Photo on social media for years,
both before and after Gamble sold his interest in CLP, without objection by Gamble. And such
use was wholly consistent with the use of other photos taken by Gamble and provided to CLP, all
of which persisted for years without objection.
CLP’s use of the Tyson Photo in connection with the Signed TIFF was also well within
the scope of the Gamble’s license. The Signed TIFF was created from a relatively low-
resolution image file of the Tyson Photo, identical to the one provided by Gamble to CLP (if not
the same exact file). CLP printed the image, had it autographed by Tyson, and then scanned the
signed low-resolution print-out to create the digital file. The only discernable difference between
Gamble’s original image file used on CLP’s website and the Signed TIFF was just Tyson’s
autograph. But the purpose of the use remained the same -- to promote CLP.
Apart from the autograph, the only other variant with respect to the Signed TIFF use of
the Tyson Photo was the email distribution, rather than online display. But email distribution is a
much more limited use than online display. The passive display of a photo on a website, unless
protected, allows any visitor to that site to download the underlying image file. (For point of
reference, the StarTalk Facebook page has more than 33,000 followers. Tyson has 12.2 million
Twitter followers.)80 By contrast, emails are individually sent to select recipients, in this instance
numbering about 1,500 (or less than 5% of StarTalk’s Facebook following). Accordingly, as the
Signed TIFF use was a more limited use than the website use or the social media use, it fell
within the scope of the implied license.
Each of CLP’s uses of the Tyson Photo was licensed by Gamble. Accordingly, the Court
should grant summary judgment to CLP on the First Claim.
80
Moken Decl., Exs. I, J.
22
12. The First and Second Causes of Action as to Tyson Should Be Dismissed Because
the Allegations that Tyson Directly, Contributorily, or Vicariously Infringed the
Photo Are Implausible and Demonstrably False
(a) The Allegations of Direct Infringement Are Implausible
Neil deGrasse Tyson is the Director of the Hayden Planetarium at the American Museum
of Natural History. He is an astrophysicist, author, television and radio personality, and a public
speaker on various science related subject matters. Time Magazine, in 2007, named him one of
The Time 100, the publications’ list of The Most Influential People in The World. Tyson
received this accolade seven years before hosting the relaunch of Carl Sagan’s Cosmos in 2014,
reaching tens of millions of viewers across the world.
The crux of the copyright allegations against Tyson is that he “personally directed” that
the Tyson Photo be used to “promote his various media appearances” (FAC ¶ 77), and that he
“improperly obtain[ed] a high resolution copy of the Tyson Photo from Norton, ma[de]
unauthorized copies of the file, and direct[ed] such third party presenters to use the Tyson Photo
to promote Tyson’s media appearances (Id. ¶¶ 88). The allegations are implausible and
demonstrably false.
As Plaintiff should be aware from his experience in the “selection and hiring of talent”
for StarTalk, see FAC ¶ 31, the “talent” does not typically personally direct what photos should
be used for various media performances, and the talent typically does not seek out high
resolution image files from its publisher and then send those files to venue promoters.
Tyson’s use of the Tyson Photo or any of the other professional portraits of him was and
is almost entirely passive. He displays relatively low-resolution portraits (137Kb in the case of
the Tyson Photo) on the “Photos” page of his section of the Hayden Planetarium website
(accessible via a “PRESS KIT” link), with contact and usage information, so that journalists and
promoters may connect with the appropriate photographer and secure licensing. Promoters of
23
Tyson’s speaking engagements are directed to Tyson’s “Photos” page in the rider to the
agreement they execute with Tyson’s speaking manager, Defendant Jodi Solomon Speaker’s
Bureau. The rider expressly states that permission must be secured from the corresponding
photographer for the use of any of the Tyson portraits, including the Tyson Photo. With respect
to the promotion and coverage of his media appearance and speaking engagements, Tyson does
not “personally direct” or select any photos.
Moreover, the Tyson Photo was taken in 2008 and first used in connection with a book
released in January 2009. Plaintiff alleges, upon information and belief, that Tyson personally
asked his publisher for a high-resolution JPEG or Raw file around 2013. Tyson, however, had
already published another book by then. Come 2014, Tyson was hosting the international re-
launch of Carl Sagan’s Cosmos. It would make little sense for venue promoters, seeking to
capitalize on Cosmos’s sweeping success, to use an image of Tyson associated with a 2009 book,
rather than stills from the hugely popular just-aired series. It is entirely implausible that Tyson
tracked down an appropriately-sized image file of a five-year old photo and personally sent it to
venue promoters across the country.
Gamble’s allegations upon information and belief are entitled to the presumption of
truthfulness only “where the facts are peculiarly within the possession and control of the
defendant or where the belief is based on factual information that makes the inference of
culpability plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)
(citing Iqbal, 556 U.S. at 677). The facts here are not “peculiarly within the possession and
control” of Defendants. The pertinent facts derive from correspondence, in the possession of
Gamble, between Gamble and Defendants, in addition to publicly available information readily
accessible to Gamble and his counsel, all of which flatly contradict the information-and-belief
24
allegations that riddle the FAC, as well as multiple allegations set forth therein and lacking any
such qualifier.
For example, Gamble alleges that he “never entered into any other licensing
arrangements in relations [sic] to the Tyson Photo.”81 The allegation is patently false. Gamble
secured a $600 fee for billboard use of the Tyson Photo to promote a Foxwoods, Connecticut
appearance.82 Tyson told Gamble about the billboard (not a poster) when they met in New
Orleans in November 2015 (not December), asked Gamble if the use was licensed, and – in
subsequent email correspondence with Gamble that same month – offered to help track down the
promoter responsible, and in fact connected Gamble with his speaking agent, who in turn
connected Gamble with the promoter to negotiate a “licensing arrangement.”83
The billboard license was not the only “licensing arrangement” that Gamble omitted from
the FAC. Gamble collected $1050 for use of the Tyson Photo in connection with a Tyson
appearance at The Straz Center, in Tampa, Florida in February, 2017. Gamble received $3500
for “a license given to NPG Smithsonian” in connection with his84 sale of a Tyson Photo print to
the National Portrait Gallery. And, in his April 18, 2017 demand email, Gamble admitted that he
was “getting compensation from those who have admitted a breach of copyright.”85
These omitted “licensing arrangements” bar Gamble from recovering from any of the
instant Defendants in connection with the corresponding alleged infringements – and
infringements that were perpetrated by third parties at that. See Screen Gems-Columbia Music,
453 F.2d at 554 (2d Cir. 1972) (“Under elementary principles of tort law a plaintiff is entitled to
81
FAC ¶ 70.
82
Tyson Decl. ¶ 31, Ex. O.
83
Tyson Decl., Ex. E.
84
Tyson Decl., Ex. U.
85
Tyson Decl., Ex. S.
25
only one recovery for a wrong.”); see also Sparaco v. Lawler, Matusky, Skelly Engineers LLP,
313 F. Supp. 2d 247, 257 (S.D.N.Y. 2004) (dismissing copyright infringement claim against one
defendant because plaintiff settled contract claim that arose out of same incident with another
defendant, and plaintiff was therefore fully compensated for the injury and could not doubly
recover from the second defendant).
Gamble omitted other material facts that belie any information or belief that Tyson could
possibly have engaged in the acts alleged in the FAC. Specifically, Gamble omits any mention
of Tyson’s repeated offers of assistance to help Gamble identify unauthorized users of the Tyson
Photo. For example, in response to the April 18, 2017 demand letter, when Plaintiff first
informed Tyson of “unauthorized” uses, Tyson offered, among other remedial measures:
“I can contact my speaking manager to help you track down abuses of the telescope
photo from past public talks I’ve given, but it’s not every talk, and I had presumed
that the few places (surely less than 10%) that did use the image made proper
contact with you. So if [] you can document precisely where that **did not**
happen, I’d be happy to explore what I can do on my end.”86
Nor has Gamble alleged “factual information that makes the inference of culpability
plausible.” The FAC lacks any evidence that Tyson did anything but use the Tyson Photo within
the scope of his license from Gamble. Further, there is no evidence (and Plaintiff has effectively
admitted this) that Norton provided Tyson with a high resolution version of the Tyson Photo, as
Gamble asserts is the only way Tyson could have obtained such a photo.87
There are a multitude of more plausible explanations. For example, venue promoters
might have reached out directly to Norton Publishing for a suitable image of the Photo to use in
their promotional materials. Or, unscrupulous promoters may have illicitly obtained the
necessary image file somewhere online, perhaps from the display of the Tyson Photo on Tyson’s
86
Id.
87
See fn. 44, supra.
26
“Photos” page that was expressly licensed by Plaintiff. Yet even more plausible is the scenario
demonstrated by the correspondence of Elizabeth Stachel with third party requesters of
photographs of Neil. That correspondence demonstrates that third party requesters were
constantly seeking provision of higher resolution photos than those on the Hayden Planetarium
site, and that they were repeatedly redirected to the individual photographer for provision of such
higher quality photos. Gamble himself likely provided high resolution versions of the Tyson
Photo to such requestors, resulting in even more sources for potential unlicensed use by other
third parties. None of which has anything to do with or indicates any culpable action by Tyson.
Such “obvious alternative explanation[s]” demonstrate the FAC’s lack of facial
plausibility, and the absence of facts to support its incredulous allegations against Tyson. Iqbal,
129 S.Ct. at 1950. Summary judgment should therefore be granted in favor of Tyson as to the
first cause of action.
(b) The Allegations of Contributory Infringement Are Implausible, and Tyson

Lacked the Requisite Knowledge Regardless
To establish a claim that a defendant materially contributed to copyright infringement, a
plaintiff must show “that the defendant (1) had actual or constructive knowledge of the infringing
activity, and (2) encouraged or assisted others’ infringement, or provided machinery or goods that
facilitated infringement.” Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d 398, 432
(S.D.N.Y. 2011). There can be no contributory copyright infringement where there is no
underlying, direct copyright infringement. Young-Wolff v. John Wiley & Sons, Inc., No. 12-CV-
5230 (JPO), 2016 WL 154115, at *8 (S.D.N.Y. Jan. 12, 2016) (“[B]oth contributory and vicarious
theories of liability require evidence of the underlying direct infringement.”); Faulkner v. Nat'l
Geographic Enterprises Inc., 409 F.3d 26, 40 (2d Cir. 2005) (“[T]here can be no contributory
infringement absent actual infringement . . . .”).
27
As detailed above, the allegations in the FAC with respect to Tyson assisting others’
infringement or providing goods to facilitate infringement “stop[] short of the line between
possibility and plausibility.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S.
at 557, 127 S.Ct. 1955). Gamble’s contributory copyright infringement claim against Tyson fails
also for lack of any allegation that Tyson had the requisite knowledge of the infringing activity,
and the fact that he lacked such knowledge.
“Contributory liability requires that the secondary infringer know or have reason to
know of direct infringement.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th
Cir.2001). Tyson knew generally that promoters and journalists used the photos displayed on his
“Photos” page of the Hayden Planetarium website, because that was the intended purpose of the
page – to connect promoters and journalists with photographers and provide photographers with
the opportunity to license their work and generate “actual real income from legitimate
commercial use.”88 As of April 2017, Tyson had been professionally “portrait photographed
about fifteen times” and unauthorized use had “not been a problem” with any of the other
portraits displayed on his “Photos” page.89 At least as late as November 15, 2015, Gamble
maintained that unauthorized use was minimal, and “usually resolved painlessly in most cases.”90
Whenever Tyson did become aware of use of the Tyson Photo, he reasonably presumed it
was licensed – in large part because the rider to his speaking engagement contracts required it,
and because Gamble had assured him that was typically the case.91 Where the use was
88
Tyson Decl., Ex. S.
89
Id.
90
Tyson Decl., Ex. E (Gamble to Tyson: “I appreciate you helping on this poster [meaning the
billboard] .You have the correct permission /copyright info . Interested people call for
permission and then use the pic as agreed.”)
91
Id.
28
exceptional, such as with the billboard, Tyson alerted Gamble (in the spirit of presenting exciting
news: your photo is being used for a billboard!), asked if Gamble had authorized the use, and if
not, offered to assist – and actually did assist – in tracking down abuses and connecting Plaintiff
with the appropriate party to secure due compensation.92
Such behavior demonstrates that Tyson lacked the requisite knowledge to materially
contribute to copyright infringement. If Tyson intended to commit copyright infringement, or
help someone else commit copyright infringement – i.e., use the Tyson Photo without proper
license and compensation – he certainly would not advise the copyright owner about
unauthorized use.
(c) The Lack of Any Financial Benefit to Tyson Directly Attributable to the
Alleged Infringement Precludes Vicariously Liability
Vicarious liability for copyright infringement requires that a defendant have the right and
ability to supervise the infringing activity, and decline to exercise it, while reaping a direct
financial benefit from the infringement. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913, 930 (2005). As with contributory infringement, a party cannot be liable for
vicarious infringement where there is no underlying direct infringement. Young-Wolff v. John
Wiley & Sons, Inc., No. 12-CV-5230 (JPO), 2016 WL 154115, at *8 (S.D.N.Y. Jan. 12, 2016)
Gamble’s flimsy allegation that Tyson had and “declined the right and ability to
supervise or control the alleged infringing activity” fails for the same reason as detailed above,
namely that it is implausible.93 The facial implausibility is manifest by the obvious alternative
explanations; e.g., Third Party Presenters may have directly contacted Tyson’s publisher, Norton
92
Id.; see, e.g., Tyson Decl., Ex. S (Tyson offers to “contact my speaking manager to help you
[Plaintiff] track down abuses” and “to explore what I can do on my end”).
93
FAC ¶ 89. Plaintiff does not even expressly allege that Tyson had the right and ability to
supervise and control, only that he “declined the right and ability.”
29
Publishing, it being the only party, besides Gamble, definitively known to actually possess a
high-resolution image of the Photo.
Moreover, the allegation that Tyson had and declined the right and ability to supervise
the Third Party Presenters is implausible because the Third Party Presenters, i.e., venue
promoters, do not work for Tyson or CLP – they work for disparate venues scattered across the
country. Tyson had no right to supervise them, and his ability to supervise them was strained at
best. Further, as detailed above, there is no allegation that Tyson knew the use by the Third Party
Presenters was infringing. Therefore, even if Tyson had the right to supervise third-party
promoters, and the ability to supervise them – which, given Tyson’s stature as an astrophysicist,
and given the scope and number of Tyson’s media appearances, is highly implausible – he could
not have “declined to exercise” such supervisory authority because he lacked knowledge of any
direct infringement.
As for any direct financial benefit reaped from the alleged infringement, there are no
factual allegations – besides the conclusory allegation that the uses “facilitated ticket sales” – to
support the claim that Tyson benefitted financially from the alleged infringing uses of the Photo
at all. First, increased ticket sales directly benefit venues and promoters foremost, and there is
no allegation that Tyson would have directly benefitted financially from the increased ticket
sales. Moreover, there are no allegations to support the conclusory assertion that the alleged
infringing uses actually did facilitate ticket sales. While a large number of Tyson’s speaking
engagements during the pertinent time period did sell out, especially after Cosmos aired, there
are no allegations that would tie Tyson’s impressive ticket sales to promoters’ use of the Photo.94
In fact, promoters used various Tyson photos to promote his appearances during the pertinent
94
Moken Decl., Ex. L
30
time period, and there is no discernable pattern or relationship – nor any allegation thereof –
between the promotional photo used and the resulting ticket sales. Documentation of the sold
out events evidence that Tyson was capable of securing maximum financial benefit from his
public appearances, regardless of what photos might be used to promote them.95 Because the
facts demonstrate that Tyson reaped no discernible financial benefit directly attributable to the
Third Party Presenters’ alleged use of the Photo, summary judgment should be entered in favor
of Tyson on the claim of vicarious infringement.
13. The Third Cause of Action Should Be Dismissed As to CLP and Tyson Because
Neither the Allegations Nor the Facts Support a Claim for Removal of Copyright
Management Information
Section 1202(b) of the Copyright Act provides, in relevant part, that “[n]o person shall,
without the authority of the copyright owner or the law ... intentionally remove or alter any
copyright management information ... knowing, [or] having reasonable grounds to know, that it
will induce, enable, facilitate, or conceal an infringement of any right under this
title.” 17 U.S.C. § 1202(b).96
95
Id.
96
The statute defines copyright management information as:
(1) The title and other information identifying the work, including the information set forth on a
notice of copyright.
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work,
including the information set forth in a notice of copyright.
(4) With the exception of public performances of works by radio and television broadcast
stations, the name of, and other identifying information about, a performer whose performance is
fixed in a work other than an audiovisual work.
(5) With the exception of public performances of works by radio and television broadcast
stations, in the case of an audiovisual work, the name of, and other identifying information
about, a writer, performer, or director who is credited in the audiovisual work.
(6) Terms and conditions for use of the work.
(7) Identifying numbers or symbols referring to such information or links to such information.
31
“To establish a violation under subsection 1202(b), a plaintiff must show ‘(1) the
existence of CMI [i.e., copyright management information] on the [infringed work]; (2) removal
and/or alteration of that information; and (3) that the removal and/or alteration was done
intentionally.’” E.g., Gattoni v. Tibi, LLC, No. 16 Civ. 7527 (RWS), 2017 WL 2313882, at *4
(S.D.N.Y. May 25, 2017) (quoting BanxCorp v. Costco Wholesale Corp., 723 F. Supp. 2d 596,
609 (S.D.N.Y. 2010) (collecting cases)). The FAC fails to state a claim for relief with respect to
the removal of copyright management information because it fails to even allege the existence of
copyright management information.
Gamble expressly alleges that the Tyson Photo lacked any copyright management
information. Gamble alleges that, as a condition of Tyson’s use of the photo, he had to “include
Gamble’s contact information with email an telephone number, along with a statement that any
use of the Photo would necessitate Gamble’s express permission through a license agreement.”
FAC ¶ 38. If Tyson was required to add such identifying information to the Photo, then the Photo
could not itself have included the information. Defendants could not have removed information
from the Photo that, even Gamble admits, never existed in the first place.97
Absent the allegation of any facts to support the existence of copyright management
information, Gamble’s claim with respect to the intentional omission of copyright management
information is not cognizable as a violation of Section 1202. See FAC ¶ 94 (“Defendants
infringed upon Plaintiff’s rights by intentionally omitting … the name of, and other identifying
(8) Such other information as the Register of Copyrights may prescribe by regulation, except that
the Register of Copyrights may not require the provision of any information concerning the user
of a copyrighted work.
17 U.S.C. § 1202(c).
97
In the alternative, Gamble maintains and admits that the Tyson Photo “always” had attribution
to him when used by CLP. Tyson Decl., Ex. F (Gamble: “And my credit appeared on all of my
pictures up until April 2017.”).
32
information about, the Plaintiff from the infringing work.”)
Moreover, outside the confines of the post facto FAC, the correspondence
contemporaneous to the actual occurrences maintains that Tyson and CLP always provided
proper attribution for the Tyson Photo.98 And screenshots from CLP’s website and social media
channels, and from Tyson’s “Photos” page, evidence that CLP and Tyson provided attribution to
Plaintiff wherever possible.99
14. Gamble is Not Entitled to Statutory Damages or Attorneys’ Fees
Gamble did not secure registration of his copyright in the Tyson Photo until June 8, 2017,
more than eight years after it was first published. See FAC, Exh. A. Gamble does not allege any
infringements of this copyright initiated by the Defendants after June 8, 2017. Accordingly,
Gamble is not entitled to statutory damages or attorneys’ fees.
Section 504 of the Copyright Act provides that a copyright owner may elect to recover,
instead of actual damages and profits, an award of statutory damages ranging from $750 to
$150,000, for willful infringement, per work infringed. 17 U.S.C. § 504(c)(3). However, Section
412 of the Act precludes an “award of statutory damages or of attorney’s fees, as provided by
sections 504 and 505 … for … any infringement of copyright commenced after first publication
of the work and before the effective date of its registration, unless such registration is made
within three months after the first publication of the work.” 17 U.S.C. § 412.
The Photo was first published January 26, 2009. FAC, Exh. A. Registration was not made
within three months after the first publication of the work, but rather more than eight years later,
on June 8, 2017. Id. All of the misconduct alleged in the FAC commenced prior to June 8, 2017,
98
Tyson Decl., Ex. F.
99
Moken Decl., Ex. E.
33
the effective date of registration. Accordingly, Gamble is not entitled to statutory damages or to
attorneys’ fees.
The alleged misconduct occurred well before June 8, 2017. Gamble alleges that CLP
retained and used the image files in CLP’s joint Dropbox account after Gamble sold his stake in
2013. Gamble alleges that Tyson told him CLP had been creating and distributing signed prints
of the Photo to donors starting in April 2015. Gamble alleges use of the Photo on a billboard as
early as December 2015, and no later than early 2017. Nonetheless, to the extent that the
allegations in the FAC might be construed to support an inference that the alleged infringements
continued after the effective date of registration, June 8, 2017, such inference still would not
entitle Gamble to statutory damages or to attorneys’ fees. Steele v. Bell, No. 11 CIV. 9343 RA,
2014 WL 1979227, at *8 (S.D.N.Y. Mar. 28, 2014) (“A number of courts in this District . . .
have concluded that ‘Section 412 imposes a bright-line rule, barring the recovery of statutory
damages for infringement occurring after registration if that infringement is part of an ongoing
series of infringing acts and the first act occurred before registration.’” (quoting U2 Home
Entm't, Inc. v. Hong Wei Int’l Trading, Inc., No. 04 Civ. 6189(JFK), 2008 WL 3906889, at *15
(S.D.N.Y. Aug. 21, 2008)); Peterson v. Kolodin, No. 13 CIV. 793 JSR, 2013 WL 5226114, at *8
(S.D.N.Y. Sept. 10, 2013) (“[W]here the alleged infringement begins before registration and
continues after registration, statutory damages and attorney fees are still unavailable.”);
Silberman v. Innovation Luggage, Inc., No. 01 CIV. 7109 (GEL), 2003 WL 1787123, at *9
(S.D.N.Y. Apr. 3, 2003) (“[U]nder 17 U.S.C. § 412, as long as infringement
commenced before the date of registration, statutory damages and attorney's fees are barred even
if infringement continued after the date of registration.”); Innovative Networks, Inc. v. Young,
978 F. Supp. 167, 175 (S.D.N.Y. 1997), aff'd sub nom. Innovative Networks Inc. v. Satellite
34
Airlines Ticketing Centers, Inc., 152 F.3d 918 (2d Cir. 1998) (“It is clear from both the wording
and legislative history of Section 412 that statutory damages may not be awarded even if
infringement, originally commenced before registration, continues after registration.”).
Accordingly, the Court should deny in its entirety Gamble’s request for statutory
damages and attorneys’ fees as to CLP and Tyson.
15. The Statute of Limitations Bars Recovery for Infringements Discovered, or That
Should Have Been Discovered, Prior to August 31, 2014
Civil actions for copyright infringement must be “commenced within three years after the
claim accrued.” 17 U.S.C. § 507(b). The Second Circuit has held that a copyright infringement
claim accrues when Plaintiff discovers, or should have discovered, the relevant infringement.
Psihoyos v. John Wiley & Sons, Inc., 748 F. 3d 120, 125 (2d Cir. 2014). Accordingly, in view of
the August 31, 2017 filing date of the original Complaint, Gamble is barred from recovering for
any infringement that he had discovered or should have discovered by August 31, 2014.
CONCLUSION
Based on the foregoing, Defendants Curved Light Productions LLP and Neil deGrasse
Tyson respectfully request that the Court grant their motion for summary judgment on all
causes of action set forth in the First Amended Complaint, enter judgment in CLP’s and Tyson’s
favor, and grant all other relief as is just and necessary.
35
Dated: New York, New York

April 18, 2018
Respectfully submitted,
By: /s/ Merri C. Moken

Merri C. Moken
Marc L. Antonecchia
31 West 52nd Street
New York, NY 10019
(212) 513.3200
-and-
Daniel C. Neustadt
800 17th Street N.W. Suite 1100
Washington, DC 20006
(202) 955.3000
Attorneys for Defendants Curved Light

Productions LLC and Neil deGrasse Tyson
36

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Case 1:17-cv-06635-LAK-SN Document 58 Filed 04/19/18 Page 1 of 41

HOLLAND & KNIGHT LLP

HOLLAND & KNIGHT LLP

Attorneys for Defendants

UNITED STATES DISTRICT COURT

Plaintiff, Case No.: 17-cv-06635 (LAK)(SJN)

CURVED LIGHT PRODUCTIONS LLC d/b/a

PRELIMINARY STATEMENT .....................................................................................................1

12. THE FIRST AND SECOND CAUSES OF ACTION AS TO TYSON SHOULD BE

13. THE THIRD CAUSE OF ACTION SHOULD BE DISMISSED AS TO CLP AND

A & M Records, Inc. v. Napster, Inc.,

Arista Records, LLC v. Doe 3,

Arista Records LLC v. Lime Grp. LLC,

Caslterigg Master Investments Ltd. v. Charys Holding Co.,

Centro Empresarial Cempresa S.A. v America Movil, S.A.B. de C.V.,

Cornelius v. United Parcel Serv., Inc.,

Faulkner v. Nat'l Geographic Enterprises Inc.,

Gattoni v. Tibi, LLC,

Innovative Networks, Inc. v. Young,

Karlson v. Red Door Homes, LLC,

Keane Dealer Servs., Inc. v. Harts,

Latimer v. Roaring Toyz, Inc.,

Marten Transp., Ltd. v. Plattform Advert., Inc.,

In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig.,

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,

Mosberg v. Nat'l Prop. Analyst, Inc.,

Psihoyos v. John Wiley & Sons, Inc.,

Silberman v. Innovation Luggage, Inc.,

Sparaco v. Lawler, Matusky, Skelly Engineers LLP,

Structured Capital Sols., LLC v. Commerzbank AG,

Wells Fargo Bank Nw., N.A. v. Taca Int’l Airlines, S.A.,

William Wrigley Jr. Co. v. Waters,

Young-Wolff v. John Wiley & Sons, Inc.,

17 U.S.C. § 412 ..................................................................................................................32, 33, 34

17 U.S.C. § 507(b) .........................................................................................................................34

17 U.S.C. § 1202(c) .......................................................................................................................31

This is a case of spurious, unfounded claims belied by documents in Plaintiff David

Tyson, a widely-respected astrophysicist, and CLP, a three-person partnership of which both

FAC fall within the scope of that release.

actually did benefit.

documentary evidence known to Gamble, as author or recipient, that completely contradicted

claims against CLP and Tyson.

Defendant Neil deGrasse Tyson is the Director of the Hayden Planetarium, an

December 31, 2016.

the “portraits” page of his Hayden Planetarium website.17

never objected to or asked for CLP to cease such use.23

member of CLP and without his objection.25

2. Gamble Licenses the Tyson Photo to Tyson

Tyson responsible for third-parties’ improper use of that photo.

On October 17, 2013, Gamble executed a Membership Interest Purchase Agreement

… Selling Member [Plaintiff] [and related parties] (collectively, the “Selling

against Tyson and CLP that he alleges in his FAC.

again in April, 2017, years after selling his interest in CLP.40

only was attached thereto on the initiative of CLP and/or Tyson.49