[October 01, 2014]

Avisolve Wins a Victory for the Underdog

Avisolve, LLC, a start-up company offering a variety of technology solutions including consulting, IT procurement and SEO marketing, opened its doors in late September 2013 when its founders left MicroAge. Almost immediately after Avisolve opened its doors, MicroAge filed a federal lawsuit against Avisolve and its principals Scott Gossett and John Noble, and employee Russell Dailey. MicroAge alleged, in part, that Noble and Dailey caused significant "Copyright Infringement" damages to the company by continuing to use their headshot photos (taken when they were MicroAge employees) as their LinkedIn (News - Alert)^® Profile Photos.

According to the court documents, Federal Judge Neil V. Wake refused to hear the disputes that arose from state law and forced MicroAge to take its disputes to the Maricopa County Superior Court. MicroAge,however, refused to voluntarily dismiss the remaining federal claim for "Copyright Infringement" even though that claim was only aimed at two (2) of the Defendants, Noble and Dailey. MicroAge also refused to admit that use of one's own photograph on LinkedIn^® cannot meet the requirements for stating a copyright cause of action, particularly as MicroAge is not in the business of selling photos/images. MicroAge forced the Defendants to file motions and seek dismissal from Judge Wake.

Avisolve, Gossett, Noble and Dailey were successful in demonstrating that:

• MicroAge had not asked Noble or Dailey to remove the photos before suing them;
• MicroAge had never copyrighted any employee photos (in 37 years of business) but copyrighted these 2 photos online the day before filing the federal copyright lawsuit;
• MicroAge refused to dismiss Avisolve or the Gossett Defendants, despite that there were no allegations made against those parties; and
• Noble and Dailey took the photos down the moment they knew there was an issue.

Judge Wake chastised MicroAge, finding "The copyright claim never had any business substance and was manufactured to give federal jurisdiction." Judge Wake called MicroAge "unfair," held that it had "needlessly" maintained litigation "causing pointless expense" to Avisolve and the individuals, and he awarded the Defendants the entirety of the attorneys' fees and costs they were made to pay defending themselves.

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