United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Defendant's Motion to
Dismiss Plaintiff's Count II under Fed.R.Civ.P. 12(b)(6).
[Doc. 7.] The parties have consented to the jurisdiction of
the undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). For the reasons set forth below, the
Court will deny Defendant's Motion to Dismiss.
a civil action for copyright infringement. Plaintiff's
Complaint alleges direct copyright infringement under 17
U.S.C. § 501 et seq. in Count I and Count II
alleges Defendant violated 17 U.S.C. § 1202 by removing
Plaintiff's copyright management information without the
authority of the copyright owner or the law. A private right
of action and the right to damages exist under 17 U.S.C.
§ 1203 for violations of § 1202.
filed a Motion to Dismiss Plaintiff's Count II on October
7, 2019, contemporaneously with its Memorandum in Support.
[Doc. 8.] On October 14, 2019, Plaintiff filed its Memorandum
in Opposition. [Doc. 12.] On October 21, 2019, Defendant
filed its Reply to Plaintiff's Memorandum in Opposition.
[Doc. 13.] This Court granted Plaintiff's Motion for
Leave to File Short Sur-Reply on October 29, 2019. [Doc. 18.]
The Plaintiff filed its Sur-Reply on October 30, 2019. [Doc.
19.] The motion is now fully briefed.
alleges the following in its Complaint. Plaintiff and
Defendant are sellers of trailer parts, equipment, and
accessories, and are direct competitors of each other.
(Compl. ¶¶ 2, 12). As a part of its business and to
assist its customers in making online purchasing decisions,
Plaintiff expended great time, effort, and money to create
thousands of proprietary photographs and videos, which
Plaintiff made available for customer use on its website
(individually a “Work” and collectively the
“Works”). (Compl.¶¶ 3, 13, 15).
Plaintiff owns protectable copyright interests in these Works
(Compl. ¶14), and Plaintiff has obtained multiple active
and valid copyright registrations with the United States
Copyright Office, which registrations cover many of the
Works. (Compl. ¶ 16).
creating the Works, Plaintiff took steps to ensure that its
name and logo were prominently featured around and in the
Works as an indication of Plaintiff's ownership of the
Works. (Compl. ¶ 15). Plaintiff's name and logo was
placed within its photographs by being attached to the
respective picture's object piece via a sticker. (Compl.
¶ 49). Plaintiff alleges that the placement of the
sticker on the product served as copyright control and
management information. Plaintiff alleges, stickers were used
because other methods of indicating copyright ownership (such
as a watermark electronically layered onto the photographs)
were not as effective against theft. Id.
further alleges that Defendant willfully and knowingly copied
Plaintiff's copyright protected photographs, reproduced,
and published those photographs in online and paper catalogs,
and distributed paper copies of the catalogs (containing
Plaintiff's photographs) in Missouri and throughout the
United States. (Compl. ¶ 4). Plaintiff alleges that in
doing so any infringer seeking to remove a sticker from an
image, would have had to work on one image at a time and
manually remove the sticker using photo-editing software.
(Compl. ¶ 50). Such editing would require intentional
and willful removal of the name and logo of the Plaintiff,
and then filling in the area of the removed name and logo
with a color and structure matching the product. Id.
alleges that the placement of its name and logo in its Works
constitutes “copyright management information” as
contemplated by 17 U.S.C. § 1202 because it could only
be removed digitally and would only be removed by persons
unlawfully stealing Plaintiff's photographs from its
website. (Compl. ¶ 51).
Plaintiff alleges Defendant illegally misappropriated
photographs without license, permission, or authorization
from the Plaintiff and infringed Plaintiff's copyrights
by copying, modifying, and displaying the Works in
Defendant's catalogs. (Compl. ¶ 54). The
Defendant's conduct, the Plaintiff alleges, violated 17
U.S.C. § 1202(b) (Compl. ¶ 74), caused Plaintiff
irreparable harm, and will cause Plaintiff to suffer further
immediate and irreparable harm unless Defendant is enjoined
from further copyright infringement. (Compl. ¶ 5).
Motion to Dismiss Standard
survive a Rule 12(b)(6) motion, a plaintiff's allegations
must contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A pleading is deficient and may be
dismissed under Rule 12(b)(6) if a plaintiff fails “to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) is read in conjunction
with Rule 8(a), which requires “a short and plaint
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does
not require ‘detailed factual allegations,' but it
demands more than an unadorned,
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.
Iqbal, 556 U.S. at 679. A claim “has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. at 678 (citing Twombly, 550 U.S. at
556). “The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (quoting
Twombly, 550 U.S. at 556).
Court must accept the plaintiff's factual allegations as
true and construe them in the plaintiff's favor, but it
is not required to accept the legal conclusions the plaintiff
draws from the facts alleged. Iqbal, 556 U.S. at
678; Retro Television Network, Inc. v. Luken
Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012).
A court must “draw on its judicial experience and
common sense, ” and consider the plausibility of the
plaintiff's claim as a whole, not the plausibility of
each individual allegation. Zoltek Corp. v. Structural
Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010)
(quoting Iqbal, 556 U.S. at 679). “When there