Touhey v. Iron Builders Inc. (D. Mass. 24-cv-12577)

Professional photographer Max Touhey accused Iron Builders of using one of Touhey’s photographs on its business website. In May, Touhey moved for summary judgment, and Iron Builders failed to timely respond. At a subsequent status conference, Iron Builders’ counsel asserted that he had not received electronic notice of the filing of the summary judgment motion, and Judge Sorokin instructed him to file a motion for leave to file a late opposition no later than June 12^th, explaining the good cause for the delay. Iron Builders made no filings by the deadline, and two days later Tuohey filed a notice to this effect. A few hours later, Iron Builders moved for leave to file a late opposition, citing as “good cause” both that it had not received the ECF notice of the summary judgment motion and that it had no reason to believe that Touhey would be seeking summary judgment a month prior to trial (which, if true, does raise the question of whether Touhey met his meet and confer obligations under the Local Rules of the District of Massachusetts).

Judge Sorokin found these asserted reasons to be inadequate to show good cause. He noted that, contrary to the assertion of “surprise” at the filing of the motion, Touhey’s counsel had informed Iron Builders and the Court that is planned to do so during a scheduling conference in December 2025. Regarding the ECF notices, Judge Sorokin pointed out that the summary judgment filing included five different papers that included ECF notices and that counsel for Iron Builders had received all of the other notices sent by ECF, including the notice of the scheduling conference that was sent via ECF five days after the summary judgment filings. Of note, Judge Sorokin indicated that, even if the ECF notices of the summary judgment motions had not been received, “diligent attorneys are expected to stay abreast of the dockets in their active cases, especially ones nearing trial.” Further, none of the alleged failures to receive ECF notices addressed why Iron Builders missed the subsequent deadline to seek leave to file a late opposition. Accordingly, Judge Sorokin denied Iron Builders’ motion to file a late opposition.

Turning to the motion for summary judgment, Judge Sorokin determined that Touhey had met his burden of showing both ownership of a valid copyright and that Iron Builders copied the photograph. He accepted Touhey’s statement of material facts as unopposed (given the denial of Iron Builders’ motion for leave to file a late response, although Judge Sorokin pointed out that the proposed opposition actually failed to address the statement of material facts in any event).

Judge Sorokin finally rejected Iron Builders’ argument that it should not be held liable because it was a third-party website developer, not Iron Builders itself, who put the photograph on the website. He noted that, under well-established law, a corporation may be held vicariously liable for copyright infringement where (as here) it has the right and ability to supervise the infringing activity of the third party that actually copied the image and had an obvious and direct financial interest in the infringing activity. Accordingly, he granted Touhey’s motion for summary judgment of infringement.