Lasica is a photographer who took a photo of the CEO of Yahoo.com, Marissa Mayer, and published it on Flickr.com. The photo was available for public use pursuant to a Creative Commons attribution license, which prohibits the photo’s use for commercial purposes. Defendant (“AOL”) is a corporation that runs AOL.com; AOL published the photo in an article on its employment website and attributed the photo to Flickr.com and Lasica. Lasica claimed that AOL used the photo for commercial purposes by advertising the article, and sued AOL for copyright infringement and declaratory relief. AOL moved to dismiss for failure to state a claim upon which relief can be granted.
The motion to dismiss was denied. The court held that California law should be applied to interpret the license because California had the most significant relationship to the parties and transaction. The court also held that the breach of the commercial use restriction supports an infringement claim because, in such a case, the user exceeds the scope of the granted license. Although AOL raised a license as an affirmative defense, the court ruled against the motion to dismiss because Lasica stated a claim for copyright infringement and dismissal at the pleading stage would be improper. The court also denied AOL’s motion to dismiss with respect to Lasica’s request for declaratory relief.