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Buchanan v. Shapard Research, LLC

United States District Court, W.D. Oklahoma

October 17, 2017

ANDREW BUCHANAN, Plaintiff,
v.
SHAPARD RESEARCH, LLC, Defendant.

          ORDER

          DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE.

         Before 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).[1] 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.

         I. Failure to State a Plausible Claim

         Plaintiff's 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.'”[2] 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.

         A. Count 1: Copyright Infringement

         Plaintiff 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: fair use.[3]

         Plaintiff 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.

         Regarding 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.

         Next is 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.

         The 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.

         Lastly, 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.

         Viewing 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.

         B. Count 2: Contributory Infringement

         Plaintiff 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. ...


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