Vivek Shah v. Nyp Holdings, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 14, 2024*
Decided August 15, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 23-1127
VIVEK SHAH,
Plaintiff-Appellant,
v.
NYP HOLDINGS, INC., et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 21-cv-06148
Sharon Johnson Coleman,
Judge.
O R D E R
Vivek Shah, a former aspiring actor, attended parties in Hollywood where he
asked celebrities to take photographs with him. He alleged that he has copyright
ownership in these photographs, and that media outlets infringed on his copyrights by
publishing those photographs in connection with his later arrest for attempted
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See F ED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-1127 Page 2
extortion. After serving a prison sentence, he sued those media outlets for violations of
the Copyright Act and the Digital Millennium Copyright Act. The district court
dismissed the case for failure to state a claim. We affirm.
I
We take the following facts from Shah’s complaint, accept them as true, and
draw reasonable inferences in his favor. Taha v. Int’l Bhd. of Teamsters, Loc. 781, 947 F.3d
464, 469 (7th Cir. 2020). Between 2008 and 2012, Shah attended Hollywood events where
he met celebrities whom he asked to take photos with him. Once a celebrity agreed,
Shah handed over his cellphone or a compact digital camera to a friend or bystander to
take the photo. Shah maintains that he exercised creative control over the photos,
having pre-selected many of the camera settings (such as shutter speed, white balance,
ISO, exposure value, and metering type) and then directed the celebrity where to stand.
Shah says that after the photo was captured, he immediately took back the phone or
camera. He then posted the photos to his profiles on Facebook and the Internet Movie
Database (IMDb).
In 2012, Shah was arrested by the FBI after he mailed threatening
communications with the intent to extort. He had targeted billionaires and other
wealthy individuals through threats to kill members of their families. He later was
convicted of attempted extortion and sentenced to 87 months in prison.
After his arrest, multiple media outlets† published stories about Shah, using
around 20 photos from his Facebook and IMDb profiles. The outlets did not attribute
the photographs to Shah, and instead credited Facebook or IMDb, or no one at all.
In late 2021, Shah—having served his sentence—learned that his photos had
been published, registered copyright ownership in them, and sued the respective media
outlets. He alleged that the outlets infringed his copyright by publishing the photos
without his consent, that five of them violated the Digital Millennium Copyright Act by
misattributing the copyright, 17 U.S.C. § 1202, that four violated the Lanham Act,
† These include outlets owned by defendants NYP Holdings, Inc., Associated
Newspapers Ltd., New York Daily News Co., Vox Media LLC., The Smoking Gun, Ltd.,
E! Entertainment Television, LLC., The Atlantic Monthly Group LLC., CBS Studios, Inc.,
Inside Edition, Inc. Telepictures Productions, Inc., ABS News, Inc., and Fox News
Network, LLC.

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No. 23-1127 Page 3
15 U.S.C. § 1125, and that all the entities violated Illinois’s deceptive business practices
law.
The defendants moved to dismiss the case, and the district court granted the
motion. First, the court concluded that Shah failed to state a claim of copyright
infringement because he did not sufficiently allege copyright ownership—i.e., that he
was either the sole or joint author of any of the photographs—or that ownership was
somehow transferred to him by operation of law. Second, the court determined that
Shah lacked standing to bring a Digital Millennium Copyright Act claim because,
without an ownership interest in the images, it was unclear how he was harmed by the
attribution of these photographs on Facebook or IMDb. Third, the court dismissed his
Lanham Act claims because they sounded in copyright and were not actionable. Phoenix
Ent. Partners v. Rumsey, 829 F.3d 817, 826 (7th Cir. 2016). And finally, his state-law
claims were expressly preempted by the Copyright Act. 17 U.S.C. § 301(a); Seng-Tiong
Ho v. Taflove, 648 F.3d 489, 500 (7th Cir. 2011).
II
A. Copyright infringement
To state a claim of copyright infringement, a plaintiff must first allege ownership
of a valid copyright. See Hobbs v. John, 722 F.3d 1089, 1094 (7th Cir. 2013). Ownership of
a copyright “vests initially in the author or authors of the work.” Cmty. for Creative Non-
Violence v. Reid, 490 U.S. 730, 737 (1989) (citing 17 U.S.C. § 201(a)). The author is usually
“the party who actually creates the work, that is, the person who translates an idea into
a fixed, tangible expression entitled to copyright protection.” Id. After copyright vests, it
may be transferred by any means of conveyance or by operation of law. § 201(d)(1).
Shah challenges the district court’s conclusion that he did not allege he was the
photos’ sole author. He argues that the court’s decision is inconsistent with the principle
recognized in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 61 (1884) (internal
citation omitted), that the author of a photograph is the “master mind” who “actually
formed the picture by putting the persons in position, and arranging the place where
the people are to be.” In Shah’s view, he must be regarded as the photographs’ author
because he positioned the celebrities posing with him and exercised creative control
over the camera settings—acts, he says, of greater significance than merely pressing the
shutter.

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No. 23-1127 Page 4
But Burrow-Giles primarily concerned a photograph’s authorship. There, the
Supreme Court considered whether the defendant had infringed the plaintiff’s
copyright of a photograph he took of Oscar Wilde. Addressing the defendant’s
argument that no photograph could be copyrighted because a photograph does not
“embody the intellectual conception of its author,” id. at 58–59, the Court held that the
photograph of Wilde was entitled to copyright protection because of creative decisions
made by the photographer, including Wilde’s placement in front of the camera, his
expression, the costume, draperies, and arrangement of light and shadow. Id. at 60.
The author of a work ordinarily is one who “actually creates the work”—that is,
the person who translates an idea into a fixed, tangible expression entitled to copyright
protection. Reid, 490 U.S. at 737 (citing 17 U.S.C. § 102). But as the district court
explained, Shah undercut his claim of sole authorship by acknowledging that another
party took each photo and thereby contributed to its creation. Whether Shah should be
considered a joint author of the photographs is a different—and closer—question,
see Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068–69 (7th Cir. 1994), but he has
expressly disavowed any intent of co-authorship (Shah Br. at 10), so we say nothing
more about this line of argument.
Shah next asserts that the district court wrongly rejected his alternate argument
that copyright ownership was “transferred” to him when the camera or phone was
handed back to him. But he does not engage with—and therefore waives any challenge
to, see Bradley v. Vill. of Univ. Park, 59 F.4th 887, 897 (7th Cir. 2023)—the district court’s
determination that transfers by operation of law apply only in narrow circumstances
not present here.
B. Digital Millennium Copyright Act
Shah also reprises his argument that five defendants violated the Digital
Millennium Copyright Act when they attributed copyright and authorship of his photos
to Facebook or IMDb. The Act creates a private right of action for copyright owners
who have been harmed by, among other things, the production or distribution of false
copyright management information, or the removal or alteration of copyright
management information. 17 U.S.C. § 1203; see also MDY Indus., LLC v. Blizzard Ent., Inc.,
629 F.3d 928, 944 (9th Cir. 2010) (discussing actions based on other cognizable harms).
But the district court correctly dismissed this claim for lack of standing. As the court
explained, if Shah lacks a copyright ownership interest in the photographs, he could not
be harmed by the allegedly improper attribution of these photos.

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Finally, Shah has abandoned—by not addressing—any arguments related to the
district court’s dismissal of his Lanham Act and state-law claims. Bradley, 59 F.4th
at 897.
AFFIRMED

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