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Bernstein v. JC Penny Inc. - Links to infringing photographs  

U.S. District Court - Central District of California

Decision of September 29, 1998 

50 USPQ2d 1063-1064


Allegation that defendant's perfume was promoted on World Wide Web site, that Web site was "hyperlinked" to second Web site operated by co-defendant, and that second site linked to several other Web sites, including one that contained infringing photographs, fails to state claim for copyright infringement against first defendant based on multiple Internet linking


Plaintiff Gary Bernstein sued Elizabeth Arden Co. and Parfums International Ld. (collectively "Arden") for copyright infringement based on multiple linking on the Internet. Plaintiff alleges that Arden and JC Penney were liable because Arden's Passion perfume was promoted on a JC Penney website that was "hyperlinked" to a website operated by the Internet Movie Database ("IMDB") that in turn linked to several other websites, one of which - the Swedish University Network ("SUNET") - conttained infringing copies of two of plaintiff's photographs of actress Elizabeth Taylor, the spokesperson for Arden's perfume.

The parent of Arden, Conopco, moved to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted. Fed. R. Civ. Pro. 12(b)(6).

Arden contends plaintiff's theory of infringement by multiple linking would have a devastating impact on the Internet and argues the claim should be dismissed for three reasons: (1) a company whose product is merely displayed on another entity's website cannot be held liable for any infringement by the author of that website; (2) linking cannot constitute direct infringement because the Computer server of the linking website does not copy or otherwise process the content of the linked-to site; and (3) multiple linking cannot constitute contributory infringement because (a) internet users viewing of the material at issue is not infringing and thus there was no direct infringement in the United States to which Arden could contribute, see Religious Tech. Center v Netcom On-Line Comm. Servs., 907 F. Supp. 1361, 1378 n.25 (137 USPQ2d 15451) (N.D. Cal. 1995); (b) linking "is capable of substantial nonin-fringing uses" and thus cannot support a claim for contributory infringement, Sony Corp. v. Universal City Studios, 464 U.S. 417, 442 (220 USPQ 665) (1984); and (c) the Court cannot infer from the facts alleged that Arden knew the photos had been posted to SUNET and multipie linking does not constitute substantial participation in any infringement where the linking website does not mention the fact that Internet users could, by following the links, find infringing material on another website. Cf. Sega Enterprises, Ltd. v. MAPHIA, 948 F. Supp. 923 (41 USPQ2d 1705) (N.D. Cal. 1996).

Arden's motion to dismiss came on for hearing on September 21, 1998. The Court having considered the papers submitted by the parties and the argument of counsel, and good cause appearing, it is HEREBY ORDERED THAT:
(1) Arden's Motion to Dismiss is GRANTED with prejudice and plaintiff"s Complaint against Conopco, Inc., dba Elizabeth Arden Co. and Parfums International, Ltd. (sued herein as Elizabeth Arden, Inc. and Parfums International) is dismissed without leave to amend.


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