This opinion from October just showed up in my Westlaw alerts. For some reason, it frequently takes Westlaw months to index C.D. Cal. opinions (noticeably longer than opinions from other districts).
The plaintiff is a photographer who says her “work explores female sexuality, sex work, obsessions, and portraits of performance artists.” She claims that TikTok users uploaded her photos. She also claims that she sent DMCA takedown notices that TikTok didn’t honor. Although those assertions make it sound like TikTok will be in trouble, TikTok instead won on a motion to dismiss.
Direct Infringement. The plaintiff didn’t properly plead volitional conduct by TikTok.
Contributory Infringement–Knowledge. “Waterman’s complaint is completely devoid of any factual allegations regarding the specific details included in the DMCA. As such, the Court is unable to conclude TikTok had knowledge, actual or reason to know, of the alleged infringement.”
Contributory Infringement–Material Contribution. “Waterman alleges no facts that Defendant had the ability to control the acts of its users or that Defendant was able to use simple measures to remove the infringing material from its platform.”
Vicarious Infringement–Direct Financial Interest. The plaintiff “does not allege any relationship between the infringing activity and the alleged increased traffic TikTok experienced by the Photos existing on TikTok’s platform.”
Vicarious Infringement–Right and Ability to Supervise. “Waterman makes no attempt to satisfy her burden at the pleadings stage that TikTok had any type of ability to supervise or control its users’ infringing conduct.”
Implications
So, the complaint completely strikes out, despite claiming that TikTok received and didn’t honor takedown notices. TikTok also prevailed without relying on the DMCA safe harbor–which, if the plaintiff’s allegations are correct, shouldn’t be available to TikTok. Wild.
Seeing such a complete wipeout on a motion to dismiss, I initially assumed this was a pro se complaint. As it turns out, this complaint was filed by a lawyer, Lauren Hausman of Copycat Legal PLLC.
Waterman has since filed an amended complaint, which TikTok answered. The amended complaint drops the direct copyright infringement claim. The amended complaint still does not appear to provide the detailed specifics about Waterman’s takedown notices to TikTok, which is a choice.
Case Citation: Waterman v. TikTok, Inc., 2024 WL 5413655 (C.D. Cal. Oct. 30, 2024)
