Playboy is going to have to get creative to prove a site that linked to a third-party post containing more than 700 photos of centerfolds is liable for copyright infringement after a California federal judge dismissed the magazine’s lawsuit.
Playboy in November sued Happy Mutants, claiming the company’s site Boing Boing infringed its rights by linking to “Every Playboy Playmate Centerfold Ever.”
“Some wonderful person uploaded scans of every Playboy Playmate centerfold to imgur,” states the Feb. 29, 2016, post on Boing Boing. “It’s an amazing collection, whether your interests are prurient or lofty. Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time.”
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Boing Boing then linked to the imgur collection and a YouTube video, both of which appear to have since been removed.
U.S. District Judge Fernando Olguin on Wednesday dismissed Playboy’s complaint with leave to amend, asking the magazine to carefully evaluate the contentions made in Happy Mutants’ motion to dismiss before drafting a second amended complaint.
In short, the website owner argues that there is no evidence that Boing Boing copied or displayed the centerfold photos or that any of its users downloaded the images instead of viewing them.
Olguin quotes a decision in Quentin Tarantino’s 2014 lawsuit against Gawker Media over a link to a copy of his Hateful Eight script, which at the time had yet to be produced.
“An allegation that a defendant merely provided the means to accomplish an infringing activity is insufficient to establish a claim for copyright infringement,” held U.S. District Judge John F. Walter in that case. “Rather, liability exists if the defendant engages in personal conduct that encourages or assists the infringement.”
Walter allowed Tarantino leave to amend, and the filmmaker ultimately withdrew his amended complaint shortly after filing it.
Playboy’s amended complaint is due by Feb. 26.
