United States District Court, W.D. Oklahoma
(1) BILL G. PERRY FAMILY DESIGN, LLC, an Oklahoma limited liability company; and (2) BILLY PERRY, JR., an individual, Plaintiffs,
(1) NEW GENERATION HOMES, LLC, an Oklahoma limited liability company; (2) MATTHEW ANDERSON, an individual; (3) SAND PROPERTIES, LLC, an Oklahoma limited liability company; (4) DEREK SHANNON, an individual; and (5) JOHN DOES 1-99, true names unknown, Defendants.
L. RUSSELL UNITED STATES DISTRICT JUDGE
this Court is Defendants' Motion to Dismiss
Plaintiffs' Amended Complaint (Doc. 46). For the reasons
stated herein, Defendants' motion is DENIED.
filed this suit on December 20, 2017, asserting copyright
infringement and breach of contract claims. See Doc.
1; see also First Am. Compl., Doc. 40. Taking as
true all well-pleaded factual allegations in the complaint
and viewing them in the light most favorable to Plaintiffs,
see Burnett v. Mortg. Elec. Registration Sys., Inc.,
706 F.3d 1231, 1235 (10th Cir. 2013), Plaintiff Bill Perry,
Jr., “creates and authors architectural works,
pictorial works, and graphic works” for Plaintiff Bill
G. Perry Family Design, LLC (“Family Design”).
Doc. 40, at 2-3. These works include “house designs,
house design plans, blueprints, and related pictorial and
graphic works.” Id. at 3. Family Design
licenses these works for profit. Plaintiffs allege that
Defendants “advertised, constructed, offered and at
various times sold houses” based on Plaintiffs'
works, thereby infringing on the works' copyright.
Id. at 6-12; see also Doc. 40-2. Plaintiffs
identify these purportedly infringing houses by street
address, along with codes used by the parties to denote the
designs on which the houses are based. Doc. 40, at 6-12.;
see also Doc. 40-1. Plaintiffs also allege that
Defendant breached the single-use licenses to which these
plans and others were subject by constructing additional
houses based on the plans and copying or otherwise producing
derivations of the plans. See Doc. 40, at 12-13;
see also Doc. 40-1; Doc. 40-3.
Legal Standards for a Fed.R.Civ.P. 12(b)(6) Motion to
legally-sufficient complaint must include “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a). Operationalizing
the Rule, a complaint must contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face'” to survive a motion
to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). This standard “is ‘a middle
ground between heightened fact pleading . . . and allowing
complaints that are no more than labels and conclusions or a
formulaic recitation of the elements of a cause of
action.'” Khalik v. United Air Lines, 671
F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). That
is, the plaintiff's complaint “need only give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Id. at 1192 (internal
quotation marks and citations omitted). While assessing
plausibility is “a context-specific task . . .
requir[ing] . . . court[s] to draw on [their] judicial
experience and common sense, ” Iqbal, 556 U.S.
at 679, complaints “‘plead[ing] factual content
that allows the court to . . . reasonabl[y] infer that the
defendant is liable for the misconduct alleged'”
are facially plausible. See S.E.C. v. Shields, 744
F.3d 633, 640 (10th Cir. 2014) (quoting Iqbal, 556
U.S. at 678).
their motion to dismiss, Defendants offer four arguments, or
“propositions”: (1) Plaintiffs' allegations
of willful and intentional copying fail to state a claim, (2)
Plaintiffs' allegations that Defendants are
“legally interchangeable” fail to state a claim,
(3) Plaintiffs fail to state an actionable claim of copyright
infringement, and (4) Plaintiffs' breach of contract
claim is preempted by the Copyright Act. Doc. 46, at 4-11.
All of Defendant's “propositions” fail to
show that Plaintiffs' amended complaint is fatally
first three propositions rest on the same legal argument:
portions of Plaintiffs' amended complaint are pled
formulaically and implausibly, such that they fail to satisfy
Fed.R.Civ.P. 8(a)(2). Doc. 46, at 4-6. Specifically,
Defendants argue under Proposition I that Plaintiffs'
allegations of willful, intentional, and malicious copyright
infringement are the types of “conclusory
allegations” that the United States Supreme Court held
insufficient to state a claim in Ashcroft v. Iqbal.
See Doc. 40, at 7-13; Doc. 46, at 4-5; see also
Iqbal, 556 U.S. at 678 (“Threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). Similarly,
Proposition II asserts that Plaintiffs' allegations
relating to the liability of each Defendant-that is, that
they are “legally interchangeable and are the alter
egos [of one] another”-are conclusory and, thus,
insufficient. Doc. 46, at 5-6. Finally, Proposition III
attacks the sufficiency of Plaintiffs' copyright claims
as pled. Id. at 6-8.
elements of a copyright infringement claim are
straightforward: Plaintiffs must prove “‘(1)
ownership of a valid copyright, and (2) copying of
constituent elements of the work that are
original.'” Savant Homes, Inc. v. Collins,
809 F.3d 1133, 1138 (10th Cir. 2016) (quoting Feist
Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,
361 (1991)). Plaintiffs have alleged ownership of a valid
copyright, and Defendants do not appear to contest this.
See Doc. 40, at 6 (“The Plaintiffs have
registered with the United States Copyright Office . . . the
architectural works, house designs, and house design plans at
issue herein . . . .”); Doc. 40-2, at 1 (stating works
at issue registered under designation
“VA-1-381-273”); see also Doc. 46, at
6-8. Rather, Defendants argue that Plaintiffs insufficiently
pled the second element of copyright infringement: that
Defendant copied original elements of the work. See
Doc. 46, at 6-8.
whether Defendants “copied” the works in
question, Plaintiffs clearly allege that they did.
See Doc. 40, at 8 (“Defendants have infringed
upon several of the Plaintiffs' copyrights by copying
and duplicating the Plaintiffs' . . . works . . .
.” (emphasis added)). And as to whether those elements
copied were sufficiently “original, ” this issue
involves factual questions inappropriate for resolution at
the motion-to-dismiss stage. See McNeese Photography,
L.L.C. v. Access Midstream Partners, L.P., No.
CIV-14-0503-HE, 2014 WL 3919575, at *2 (W.D. Okla. Aug. 11,
2014) (“A determination of whether plaintiffs'
works contain sufficient originality to entitle them to
copyright protection, however, involves questions of fact not
ordinarily appropriate for resolution on a motion to
dismiss.”); see also FragranceNet.com, Inc. v.
FragranceX.com, Inc., 679 F.Supp.2d 312, 320 (E.D.N.Y.
2010) (noting that originality is “a factual issue . .
. inappropriate for determination on a motion to
dismiss” and one best resolved “on a motion for
summary judgment, after the parties have conducted discovery
and had the opportunity to submit evidence on the
issue”). Accordingly, the Court concludes that it is
premature to resolve issues of originality and that
Plaintiffs have pled sufficient factual content to state
copyright infringement claims.
Propositions I and II fare no better. As to Proposition I,
the Court finds that Plaintiffs sufficiently pled willful
copyright infringement. “Willfully” in the
copyright infringement context means that Defendants knew
their conduct constituted copyright infringement or
recklessly disregarded Plaintiffs' rights. Moos v.
Craft Outlet, Inc., No. CIV-16-750-C, 2017 WL 238445, at
*1 (W.D. Okla. Jan. 19, 2017). The willfulness of the
infringement, if proven, is germane to the damages available
to Plaintiffs. See 17 U.S.C. § 504(c)(2)
(“In a case where the copyright owner sustains the
burden of proving, and the court finds, that infringement was
committed willfully, the court in its discretion may increase
the award of statutory damages . . . .”); Rocking
Chair Enters., L.L.C. v. Macerich SCG Ltd. P'ship,
407 F.Supp.2d 1263, 1269 (W.D. Okla. 2005) (“Enhanced
statutory damages are available when plaintiff sustains the
burden of proving that the copyright infringement was
committed willfully.”). While Plaintiffs could have
alleged “willfulness” with greater clarity or
detail, the Court is satisfied that the factual content in
the amended complaint makes out a claim for willful copyright
infringement. See, e.g., Doc. 40, at 6-11 (noting
that Defendants intentionally used Plaintiffs' works in
Proposition II, Defendants' arguments are unavailing. In
asserting that Plaintiffs' liability theories are
deficiently pled, Defendants greatly emphasize language from
an unpublished Sixth Circuit Court of Appeals decision,
Trustees of Detroit Carpenters Fringe Benefit Funds v.
Patrie Construction Co.
(“Patrie”). See Doc. 46, at 5-
6. In Patrie, the Sixth Circuit noted that
“generalized and conclusory allegations regarding
common ownership, employees, management, control, and
decisionmaking are essentially a recitation of the legal
standard and are plainly insufficient to state a claim of
alter ego status.” Patrie, 618 Fed.Appx. 246,
254 (6th Cir. 2015) (internal quotation marks, citations,
brackets, alterations, and ellipsis omitted). Defendants
surely know that Sixth Circuit decisions-especially
unpublished ones-do not bind this Court. Moreover,
Patrie deals with the equitable “alter-ego
doctrine” at play in the collective bargaining context.
Id. at 252. This doctrine “developed to
prevent employers from evading obligations under the National
Labor Relations Act” and “operates to bind an
employer to a collective bargaining agreement if it is found
to be an alter ego of a signatory employer.” Trs.