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Bob Daemmrich Photography, Inc. v. McGraw-Hill Global Education Holdings, LLC

United States District Court, W.D. Texas, Austin Division

June 12, 2017

BOB DAEMMRICH PHOTOGRAPHY, INC.
v.
MCGRAW-HILL GLOBAL EDUCATION HOLDINGS, LLC,

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

         Before the Court are Defendants' Motion to Partially Dismiss First Amended Complaint (Dkt. No. 33); Plaintiff's Memorandum in Opposition to Motion to Partially Dismiss First Amended Complaint (Dkt. No. 36); and Defendants' Reply (Dkt. No. 38). The District Court referred the above motion to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. §636(b)(1)(A), Fed.R.Civ.P. 72, and Rule 1(c) of Appendix C of the Local Rules.

         I. GENERAL BACKGROUND

         Plaintiff Bob Daemmrich Photography, Inc. (Daemmrich) brings this suit against McGraw-Hill Global Education Holdings, LLC and McGraw-Hill School Education Holdings, LLC (McGraw-Hill) alleging copyright infringement. Daemmrich is a stock photography agency that licenses the work of Bob Daemmrich to McGraw-Hill both directly and through a number of third-party stock photography agencies. Daemmrich had sold the limited licenses to use copies of stock photographs it owned in certain publications. The licenses were limited by number of copies, distribution area, language, duration, and media type. Daemmrich claims that McGraw-Hill exceeded the licenses, infringing on the copyrights in the stock photographs in a number of ways, including: printing more copies than licensed, distributing outside the distribution area, publishing international editions, and publishing outside the time limits prescribed by the licenses.

         On February 13, 2017, Daemmrich filed an Amended Complaint, attaching two new exhibits, Exhibits 6 and 7, which added a number of claims from documents produced by McGraw-Hill during discovery. Exhibit 6 comes from McGraw-Hill's 1Step Database; Exhibit 7 comes from its CREATE database. The CREATE database was produced shortly before Daemmrich's amended pleadings were due. Both database reports provide information from McGraw-Hill's own records on stock photographs used in its publications. McGraw-Hill moves to partially dismiss the First Amended Complaint. It does not challenge the first five exhibits, but only challenges the adequacy of the pleadings for Exhibits 6 and 7. These exhibits do not include the same information, which McGraw-Hill argues is required to satisfy the pleading standard in Rule 8(a).

         The first five exhibits have columns, in spreadsheet form, containing: (1) a thumbnail of the image, (2) the stock ID number of the photograph, (3) the copyright registration number, (4) the invoice number for any licenses, (5) where the photograph was published, and (6) the licencing information. Though not every column is complete for each image in Exhibits 1-5, all include at least the image, stock ID number, and copyright registration information. In contrast, Exhibit 6 lists the (1) ISBN number of the publication in which the infringing photograph is found, (2) title of the publication, (3) stock ID number, (4) photograph credit included in the publication, and (5) any invoice information available. It does not include either a thumbnail version of the image itself or the copyright registration number. Exhibit 7 then provides the (1) book unique identification number (from McGraw-Hill's records), (2) author, title, edition, and ISBN number of the publication in which the photograph is printed, (3) exact location in the publication, and (4) licensor listed in McGraw-Hill's records. It does not provide a thumbnail image, stock ID number, or copyright registration number.

         As Exhibits 6 and 7 do not include the same information that was included in the five previous exhibits, McGraw-Hill moves to dismiss the claims in each of these exhibits. Specifically, McGraw-Hill moves to dismiss 338 of the 528 claims in Exhibit 6 and all 212 claims in Exhibit 7.[1]Daemmrich contends that it has sufficiently pled copyright infringement for each photograph, and therefore the claims provided in these exhibits should not be dismissed.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.12(b)(6). In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S. 1182 (2008). The Supreme Court has explained that a complaint must contain sufficient factual matter “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged.” Id. The court generally is not to look beyond the pleadings in deciding a motion to dismiss. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).

         III. ANALYSIS

         McGraw-Hill contends that Daemmrich failed to sufficiently plead copyright infringement for the claims listed in Exhibits 6 and 7 to the Amended Complaint. To succeed on a copyright infringement claim, a plaintiff must prove that: (1) he owns a valid copyright in the applicable work, and (2) the defendant copied constituent elements of the plaintiff's work that are original. Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004). Federal Rule of Civil Procedure 8(a), requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” However, McGraw-Hill argues that courts have applied a heightened pleading standard for copyright infringement claims, which requires plaintiffs to allege: “(1) which specific original works are the subject of the claim, (2) that the plaintiff owns the copyright, (3) that the works have been registered in compliance with the copyright laws, and (4) by what acts and during what time the defendant has infringed the copyright.” Sefton v. Jew, 201 F.Supp.2d 730, 747 (W.D. Tex. 2001) (citing Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992)). But see Arista Records, LLC v. Greubel, 453 F.Supp.2d 961, 964 (N.D. Tex. 2006) (“To the extent Gruebel is suggesting that there is a heightened pleading requirement for copyright litigation, that position does not comport with the liberal pleading requirements found in the Federal Rules of Civil Procedure.”). McGraw-Hill contends that Daemmrich has failed to meet this standard because the complaint does not identify the specific original works at issue or plead a valid registered copyright in the works. Daemmrich maintains that, even if the heightened pleading standard applies, it has sufficiently alleged copyright infringement for these exhibits. The Court agrees.

         A. Specific Original Works

         First, McGraw-Hill argues that Daemmrich has not identified the works that are the subject of its claim in Exhibits 6 and 7 with sufficient particularity. McGraw-Hill challenges the sufficiency of (1) Exhibit 6 on the basis that it failed to include the thumbnail images of each of the copyrighted works, and (2) Exhibit 7on the basis that it failed to provide either the Stock ID number or thumbnail image of each photograph. This argument is misguided. Courts simply do not require the level of specificity that McGraw-Hill insists upon to state a claim for copyright infiringement. Rather, the purpose of the complaint is to give fair notice to the defendant of the claims that it must defend against. Arista Records, 453 F.Supp.2d at 965. When applying the heightened pleading standard, courts have found that “copies of a portion of the works at issue and copies of [the defendant's] website” gave sufficient notice. Sefton, 201 F.Supp.2d at 747. Even when the plaintiff “failed to provide a comprehensive list or set of copies of all the photographs at issue, ” courts have refused to dismiss the claims. Id.; Young-Wolff v. McGraw-Hill Cos., No. 13-CV-4372(KMW)(JCF), 2014 WL 349711, *12 (S.D.N.Y. Jan. 31, ...


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