United States District Court, D. Arizona
S. Willett, United States Magistrate Judge.
February 4, 2019, Plaintiff filed a Complaint (Doc. 1)
alleging copyright infringement under 17 U.S.C. § 101 et
seq. Plaintiff alleges that Defendants engaged in the
unauthorized commercial exploitation of one of
Plaintiff's federally registered photographs.
(Id. at 4, ¶ 18). Defendants filed an Answer
(Doc. 14) that raises ten affirmative defenses. Pending
before the Court is Plaintiff's “Motion to Strike
Affirmative Defenses” (Doc. 28) in which Plaintiff
seeks to strike Defendants' first, second, third, sixth,
eighth, ninth, and tenth affirmative defenses. For the
reasons explained herein, the Motion (Doc. 28) will be denied
in part and granted in part.
Rule of Civil Procedure 12(f) authorizes the court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” The purpose of a motion to strike “is to
avoid the expenditure of time and money that must arise from
litigating spurious issues by dispensing with those issues
prior to trial[.]” Sidney-Vinstein v. A.H. Robins
Co., 697 F.2d 880, 885 (9th Cir. 1983). “Motions
to strike are generally viewed with disfavor and are not
frequently granted.” Lazar v. Trans Union LLC,
195 F.R.D. 665, 669 (C.D. Cal. 2000).
First Affirmative Defense
first affirmative defense asserts that Plaintiff has failed
to state a claim. (Doc. 14 at 3, ¶ 17). “A defense
which demonstrates that plaintiff has not met its burden of
proof is not an affirmative defense.” Zivkovic v.
S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir.
2002). “Failure to state a claim is not a proper
affirmative defense but, rather, asserts a defect in
[Plaintiff's] prima facie case.” Barnes v. AT
& T Pension Ben. Plan-Nonbargained Program, 718
F.Supp.2d 1167, 1174 (N.D. Cal. 2010). The Court will grant
Plaintiff's Motion (Doc. 28) as to Defendants' first
Second Affirmative Defense
second affirmative defense alleges that “[a]ny
purported use by Defendants are an exercise of free speech
and constitutionally protected by the First Amendment of the
United States Constitution.” (Doc. 14 at 3, ¶ 18).
Plaintiff correctly contends that the assertion of a First
Amendment right is not a valid affirmative defense in a
copyright infringement case. “Copyright law
incorporates First Amendment goals by ensuring that copyright
protection extends only to the forms in which ideas and
information are expressed and not to the ideas and
information themselves.” Los Angeles News Serv. v.
Tullo, 973 F.2d 791, 795 (9th Cir. 1992).
“Furthermore, First Amendment concerns are addressed
through the ‘fair use' doctrine, which recognizes
‘a privilege in others than the owner of the copyright
to use the copyrighted material in a reasonable manner
without his consent.”” Urantia Found. v.
Maaherra, 895 F.Supp. 1329, 1334 (D. Ariz. 1995)
(quoting Harper & Row Publishers, Inc. v. Nation
Enterprises, 471 U.S. 539, 549 (1985)). Plaintiff's
Motion (Doc. 28) will be granted as to Defendants' second
Third, Sixth, and Ninth Affirmative Defenses
third affirmative defense asserts that “[a]ny purported
use by Defendants of Plaintiff's copyrighted work, if any
is found to exist, is fair use under 17 U.S.C.
§107.” (Doc. 14 at 3, ¶ 19). As a sixth
affirmative defense, Defendants' allege that
Plaintiff's claim is barred by the doctrines of equitable
estoppel and waiver. (Doc. 14 at 4, ¶ 22).
Defendants' ninth affirmative defense states that
“[a]ny copying of Plaintiff's work (which Defendant
denies and assume only for sake of asserting this defense)
was consented to by the owner of the appropriate rights in
Plaintiff's works.” (Id., ¶ 25).
asserts that the Court should strike Defendants' third,
sixth, and ninth affirmative defenses on the ground that
Defendants have not provided any factual allegations in
support of those affirmative defenses. (Doc. 28 at 4-6).
However, “[t]he ‘fair notice' required by the
pleading standards only requires describing the defense in
‘general terms.'” Kohler v. Flava
Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015)
(citing 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1274 (3d ed. 1998)).
the United States Supreme Court nor the Ninth Circuit has
determined what standard should be used to determine the
sufficiency of a defendant's affirmative defenses, and
accordingly, there has been significant disagreement amongst
federal district courts within this Circuit.” Loi
Nguyen v. Durham Sch. Servs., L.P., 358 F.Supp.3d 1056,
1059 (C.D. Cal. 2019) (internal quotation marks and citation
omitted). The Court is persuaded by cases that conclude that
the “fair notice standard does not require defendants
to provide a detailed statement of facts.” Roe v.
City of San Diego, 289 F.R.D. 604, 611 (S.D. Cal. 2013);
see also Loi Nguyen, L.P., 358 F.Supp.3d at 1060
(“[W]hen a defendant asserts affirmative defenses in an
answer, Rules 8(b) and 8(c) only require that those defenses
be stated.”). “Rule 8(c)-applicable to
affirmative defenses-only requires a responding party to
‘affirmatively state' its defenses.”
Roe, 289 F.R.D. at 609 (emphasis in original).
Plaintiff's Motion (Doc. 28) will be denied as to
Defendants' third, sixth, and ninth affirmative defenses.