United States District Court, D. Arizona
HONORABLE EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE.
a copyright infringement action. On September 26, 2019, with
leave of Court (Doc. 57), Plaintiff filed a First Amended
Complaint (Doc. 65). The two-count First Amended Complaint
alleges that Defendants are liable for direct and vicarious
copyright infringement. (Doc. 65 at 4-6). Pending before the
Court is the “Motion to Dismiss First Amended
Complaint” (Doc. 75) filed by Ryan Patterson and
Patterson Homes, LLC (collectively,
“Defendants”). Defendants seek dismissal of the
First Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the reasons explained herein, the
Court will deny Defendants' Motion (Doc.
Federal Rule of Civil Procedure 12(b)(6), a complaint must be
dismissed when a plaintiff's allegations fail to set
forth a set of facts that, if true, would entitle the
complainant to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (holding that a claim must be facially
plausible in order to survive a motion to dismiss). The
pleadings must raise the right to relief beyond the
speculative level; a plaintiff must provide “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). On a motion to
dismiss, “the Court must take all well-pleaded
allegations of material fact as true and construe them in the
light most favorable to the non-moving party.”
Great Minds v. Office Depot, Inc., No. 18-55331,
2019 WL 7206433, at *3 (9th Cir. Dec. 27, 2019). A court is
not required to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
evaluating a Rule 12(b)(6) motion, review is ordinarily
limited to the contents of the complaint and material
properly submitted with the complaint. Van Buskirk v.
Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.
2002); Hal Roach Studios, Inc. v. Richard Feiner &
Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).
Under the incorporation by reference doctrine, the court may
also consider documents “whose contents are alleged in
a complaint and whose authenticity no party questions, but
which are not physically attached to the pleading.”
Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994),
overruled on other grounds by 307 F.3d 1119, 1121
(9th Cir. 2002).
establish copyright infringement, a party must show (i)
ownership of a valid copyright and (ii) unauthorized copying
by another party of the constituent original elements of the
work. Feist Publ'ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340, 361 (1991). There are three doctrines
of copyright liability: direct copyright infringement,
contributory copyright infringement, and vicarious copyright
infringement. To prove a claim of direct copyright
infringement, a plaintiff must show that he owns the
copyright and that the defendant violated one or more of the
plaintiff's exclusive rights under the Copyright Act.
A & M Records v. Napster, Inc., 239 F.3d 1004,
1013 (9th Cir. 2001). A person may be liable as a
contributory infringer if the person has knowledge of the
infringing activity and induces, causes, or materially
contributes to the infringing conduct of another.
Id. at 1019 (quoting Gershwin Publ'g Corp.
v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d
Cir. 1971)). The knowledge requirement for contributory
copyright infringement includes both those with actual
knowledge and those who have reason to know of direct
infringement. Id. at 1020. Finally, a defendant is
vicariously liable for copyright infringement if he enjoys a
direct financial benefit from another's infringing
activity and “has the right and ability to
supervise” the infringing activity. Id. at
1022 (quoting Gershwin Publ'g Corp., 443 F.2d at
1162). The vicarious infringer need not know that he is
infringing. MetroGoldwyn-Mayer Studios Inc. v.
Grokster, Ltd., 125 S.Ct. 2764, 2776 n.9
The Motion to Dismiss will be Denied as to Count I (Direct
is an architectural photographer. Plaintiff alleges that in
or around July 2018, Plaintiff discovered a website that
used, without Plaintiff's consent, one of his copyrighted
photographs to promote Defendants' home remodeling
services. (Doc. 65, ¶¶ 10, 13-15). In their Motion
to Dismiss, Defendants allege that Plaintiff “offers no
factual evidence” that Defendants have infringed
Plaintiff's federally registered copyrights. (Doc. 75 at
12(b)(6) motion to dismiss is a challenge to the sufficiency
of the pleadings set forth in the complaint. “When a
federal court reviews the sufficiency of a complaint, before
the reception of any evidence either by affidavit or
admissions, its task is necessarily a limited one. The issue
is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claims.” Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
the First Amended Complaint alleges that three versions of a
marketing piece using Plaintiff's copyrighted photograph
were discovered online. In one version, Ryan Patterson was
identified as the author. (Doc. 65, ¶ 14; Doc. 65-2).
Another version identified Patterson Homes as the author, and
the final version identified Patterson Remodeling as the
author. (Doc. 65, ¶ 14; Docs. 65-3, 65-4). The First
Amended Complaint further alleges that “Defendant
Patterson-as the dominant influence in Patterson Homes and
Patterson Remodeling-determined and/or directed the policies
that led to the infringements complained of herein, and is
therefore jointly and severally liable for any direct
copyright infringement committed by Patterson Homes and/or
Patterson Remodeling.” (Doc. 65, ¶ 19). Plaintiff
does not need to allege that Defendants owned the website on
which the alleged infringing marketing pieces were
posted. See Williams v. Aho, No.
CV162088PSGFFMX, 2016 WL 10999270, at *3 (C.D. Cal. Sept. 2,
2016) (“Because Plaintiff did not need to allege that
Defendant owned newsblaze.com to state a claim for copyright
infringement [of a photograph taken by Plaintiff], the Court
denies Defendant's motion to dismiss for failure to
allege that Defendant owned the domain name
newsblaze.com.”). Assuming the truth of all facts
alleged in the First Amended Complaint and construing them in
the light most favorable to Plaintiff, the Court finds that
Count I sufficiently states a claim for direct copyright
infringement against all Defendants. Defendants' Motion
to Dismiss (Doc. 75) is denied as to Count I.
The Motion to Dismiss will be Denied as to Count II
(Vicarious Copyright Infringement)
First Amended Complaint alleges that
to the extent that the Photo was copied and posted to the
website in question by an employee of Defendants and/or a
third party, Defendants are liable for vicarious infringement
because the person working as their agent; and/or because
Defendants had the right and ability to supervise the
person's infringing activities and enjoyed a financial
benefit from those activities by virtue ...