United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion to Dismiss
Plaintiff's copyright infringement action. Doc. 11.
Defendant argues that Plaintiff failed to state a plausible
claim for relief under Fed. R. Civ. Pro. 12(b)(6) and failed
to join two Rule 19-required parties in violation of Rule
12(b)(7). In response, Plaintiff argues that
Defendant's alleged infringement does not constitute fair
use and disputes that either absent party is required under
Rule 19. Defendant's Motion is DENIED.
Failure to State a Plausible Claim
Complaint, Doc. 1, sets forth plausible claims on Counts 1-3.
A complaint may be dismissed upon a motion for “failure
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). Dismissal is proper “if, viewing
the well-pleaded factual allegations in the complaint as true
and in the light most favorable to the non-moving party, the
complaint does not contain ‘enough facts to state a
claim to relief that is plausible on its
face.'” Macarthur v. San Juan County, 497
F.3d 1057, 1064 (10th Cir. 2007) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 (2007)); see
Aschcroft v. Iqbal, 556 U.S. 662, 676-80 (2009). The
plaintiff cannot merely give “labels and conclusions,
and a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555. Such
conclusory allegations are not entitled to the court's
presumption for the plaintiff. Instead, the plaintiff must
plead facts that at least makes the claims plausible and
raise the “right of relief above the speculative
level.” Id. at 558.
Count 1: Copyright Infringement
states a plausible claim in Count 1, copyright infringement,
17 U.S.C. § 101 et seq. To establish copyright
infringement, Plaintiff must prove two elements: “(1)
ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original.”
Feist Publications, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991) Plaintiff first demonstrates he is
the exclusive copyright owner of the photograph in question.
Doc. 1-3. Plaintiff then alleges that Defendant infringed by
intentionally copying the photograph to its online polling
publication, www.soonerpoll.com. Doc. 1-4. However,
Defendant presents an affirmative defense to infringement:
pleads sufficient facts, viewed in a light most favorable to
him as the nonmoving party, to refute Defendant's fair
use argument. Fair use is codified at 17 U.S.C. § 107:
“[T]he fair use of a copyrighted work, including such
use by reproduction in copies . . ., for purposes such as
criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research,
is not an infringement of copyright.” This copyright
exception “allows the public to use not only facts and
ideas contained in a copyrighted work, but also [the
author's] expression itself in certain
circumstances.” Golan v. Holder, 565 U.S. 302,
329 (2012) (quoting Eldred v. Ashcroft, 537 U.S.
186, 219 (2003)). Courts use four factors to assess this
copyright exception: “(1) the purpose and character of
the use, including whether such use is of a commercial nature
or is for nonprofit educational purposes; (2) the nature of
the copyrighted work; (3) the amount and substantiality of
the portion used in relation to the copyrighted work as a
whole; and (4) the effect of the use upon the potential
market for or value of the copyrighted work.”
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,
577 (1994). The four factors “are to be explored, and
the results weighed together, in light of [copyright's]
purposes.” Id. at 578.
the first factor, Defendant cites the article's medical
subject matter and relation to pending state legislation to
frame it as a non-profit “journalistic piece.”
Doc. 11, at 7. Yet, Plaintiff presents a plausible argument
that Defendant's use of the copyrighted photograph was
commercial in nature. Defendant operates a for-profit
“market research” and “data collection
firm, ” and posted the copyrighted picture alongside a
poll describing the company's findings. Doc. 13, at 9;
see Doc. 1-4. Presumably, Defendant would only
include the picture if it felt the image would help drive
traffic to their website. Plaintiff's “Paterson
Affidavit” supports this theory and describes a
conversation in which Defendant allegedly admitted that the
poll summary accompanying the photograph furthered a
for-profit purpose. See Doc. 13-1.
the nature of the copyrighted work, which speaks to the
creativity of the protected work and whether it is published.
See Campbell, 510 U.S. at 586; Harper & Row
Publishers, Inc. v. Nation Enterprises, 471 U.S. 539,
563-64 (1985). Plaintiff's complaint shows that he
granted a license to a construction company to publish the
photograph on its website. See Doc. 1-1. Plaintiff
also notes the extensive work and creativity entailed in
capturing the photograph in question.
third factor concerns the copyright infringement's
substantiality. Plaintiff alleges that Defendant copied the
photograph in its entirety and without alteration, save for
the removed copyright notice. Meanwhile, Defendant argues
that one photograph is insubstantial relative to “all
the photographs”-what appear from the copyright
registration record to be over 1, 200 photographs covered by
the copyright in question. See Doc. 1-3.
the Court looks to Defendant's impact on the
copyright's value. Parties disagree on this factor,
particularly what Defendant would owe Plaintiff to obtain a
license on the photograph. Plaintiff alleges damages based
both on compensation for such a license and the alleged
infringement's effect on the market for this photograph.
the factors in totality and in the light most favorable to
Plaintiff, the nonmoving party, Plaintiff presents a
plausible response to Defendant's fair use defense. Thus,
Defendant fails its burden to dismiss Plaintiff's
copyright infringement action.
Count 2: Contributory Infringement
also states a plausible claim in Count 2, contributory
infringement. “One infringes contributorily by
intentionally inducing or encouraging direct
infringement.” Metro-Goldwyn-Mayer Studios Inc. v.
Grokster, Ltd., 545 U.S. 913, 930 (2005). Defendant
allegedly published the copyrighted photograph online without
authorization, accompanied by links to various social media
sites. See Doc. 1-5. Plaintiff argues that Defendant
intended these links to encourage consumers who visited the
www.soonerpoll.com article to directly infringe
Plaintiff's copyright. Defendant denies any knowledge
that Plaintiff's photograph was copyrighted, let alone
the requisite intent for contributory infringement. It is
unclear whether the copyrighted photograph was “capable
of ‘substantial' or ‘commercially
significant' noninfringing use.”
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. ...