Foss v. Eastern States Exposition (D. Mass. 20-cv-12167).

  • March 28, 2022

Cynthia Foss has filed several cases involving the use of her photographic work of the St. Joseph’s Abbey at the “Big E” fair in 2017.  The work was prepared for the Abbey’s use at their booth at the Big E (which is run by Eastern States Exposition), where they promoted and sold their trappiest-style beer under the Spencer Brewery label.  The Big E prepared some promotional interviews with fair presenters, including a monk from the Abbey, and the video of the interview contained Foss’ work in the background.  Foss says that this is copyright infringement, and objects to the Big E failing to credit her as the author of the photographic display.

Foss initially sued Eastern in 2018, asserting copyright infringement and various state and common law claims.  The copyright case was dismissed without prejudice for failure to plead registration (in 2019, the Supreme Court settled a circuit split and held that a plaintiff must have a registration in hand, as opposed to a mere application, to bring a copyright claim), and the remaining claims were dismissed with prejudice.  Shortly thereafter, Foss sued Eastern in state court, asserting the same claims.  The case was removed to federal court, where the state claims were again dismissed with prejudice and the copyright claim was dismissed without prejudice for again failing to plead registration.  Foss was given a final opportunity to amend the complaint to plead registration.  Foss amended the complaint, but failed to respond to Eastern’s motion to dismiss with prejudice for failure to describe the underlying work, to allege that Eastern had copied protectible elements of the work, and (yet again) that the work had been registered.  Her claim was dismissed with prejudice, an order that was never appealed.

Foss subsequently filed the instant suit, this time with the assistance of counsel.  The complaint asserted that the prior dismissals did not preclude the current one.  Judge Hillman, however, disagreed.  He found that the copyright claims had unquestionably been dismissed with prejudice, calling the argument “spurious.”  He granted Eastern’s motion to dismiss the vicarious copyright infringement claims on the grounds that judgment on the merits had been granted as against the alleged direct infringer, Spencer Brewery, and that in any event Foss had failed to address this argument in her briefing, thus waiving her opposition.  Judge Hillman further granted Eastern’s motion with respect to alleged continued infringement and violation of her right to claim authorship under the U.S. Visual Artists Rights Act (VARA).  He determined that the VARA cause of action arose under the same common nucleus of operative facts as those of the prior complaints, and thus should have been brought with the prior complaints.  In addition, Judge Hillman summarily denied Foss’ request to reject Eastern’s motion to dismiss for failing to meet and confer on all grounds on which dismissal was sought.

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