The Plaintiff August Image LLC (“August”) is a photographic syndication agency. It claimed to have acquired exclusive rights to license 6 photos of Jennifer Lopez taken by celebrity photographer Joe Pugliese.

August asserted that the Defendant airG Inc. (“airG”) infringed the copyright in the photos by reproducing them on its website without August’s authorization.

The action proceeded as a simplified action where evidence is adduced by affidavit. Interestingly, airG chose not to cross-examine any of August’s witnesses, nor adduce any evidence of its own. Instead, they objected to the admissibility of almost all the evidence tendered by August and argued that August had failed to meet its burden of proof in respect of nearly all the elements of the cause of action.

The Court concluded that August had failed to meet its burden to prove that Mr. Pugliese was a resident or citizen of the U.S. (or any other Berne Convention country) at the time the photos were created to establish that copyright subsisted in the photos, which was fatal to August’s action.

Read the full decision here.