United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER, UNITED STATES MAGISTRATE JUDGE.
THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT
this Court are Defendant's Motion to Dismiss, filed on
March 28, 2019 (Dkt. No. 10); Plaintiff's Response, filed
on April 11, 2019 (Dkt. No. 17); and Defendant's Reply,
filed on April 18, 2019 (Dkt. No. 18). On July 18, 2019, 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), Federal Rule of Civil Procedure 72,
and Rule 1 of Appendix C of the Local Rules of the United
States District Court for the Western District of Texas
Elliott McGuckin (“Plaintiff”) is a fine art
photographer and the creator and exclusive rights holder to
three land and seascape nature photographs
(“Photographs”), which he has registered with the
United States Copyright Office. Dkt. No. 1 at ¶¶
8-13. Plaintiff alleges that on November 30, 2018, he
discovered that the website www.displate.com
(“Website”) was selling metal posters featuring
unauthorized copies of his Photographs for $44.00 each.
Id. at ¶ 21. Plaintiff also alleges that he
discovered various online advertisements for the Website that
used his Photographs without his permission. The Website
specializes in creating and selling magnet- mounted metal
posters known as “displates.” Id. at
¶ 14. The Website sells displates from licensed designs
from brand partners such as Marvel and Star Wars, as well as
displates created by individual artists. Id. at
15-16. Plaintiff alleges that Displate Corporation
(“Displate”), which has its principal place of
business in Austin, Texas, operates the Website.
January 16, 2019, Plaintiff filed this lawsuit against
Displate and unknown defendants Does 1 through 10, alleging
copyright infringement under 17 U.S.C. § 101 et
seq. Specifically, Plaintiff alleges that Displate
manufactured and sold displates using his works, and also
used those works in online advertisements, without his
permission. Plaintiff seeks monetary damages, attorneys'
fees, and costs, as well as an injunction enjoining
Defendants from any infringing use of any of Plaintiff's
March 28, 2019, Displate filed the instant Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing
that Plaintiff has sued the wrong defendant in this case
because it “does not own, operate, control, or
otherwise have any involvement with the Website or any
advertisements of the same.” Dkt. No. 10 at p. 1.
Displate contends that its parent company, GWD Concept Sp z
o.o. (“GWD”), a Polish corporation with its
principal place of business in Marki, Poland, is the actual
owner and operator of the Website. Id. Displate
argues that it is merely a wholly owned subsidiary of GWD
based in Austin, Texas. Id. Displate argues that
Plaintiff's copyright infringement lawsuit should be
dismissed for naming the wrong defendant.
Rule of Civil Procedure 12(b)(6) allows a party to move to
dismiss an action for failure to state a claim on which
relief can be granted. In deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim, the 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). 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.” Ashcroft, 556 U.S. at 678.
“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitle[ment] to relief requires 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 (internal quotations and citations omitted).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Id. The
court's review is limited to the complaint, any documents
attached to the complaint, and any documents attached to the
motion to dismiss that are central to the claim and
referenced by the complaint. Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
for copyright infringement requires that the plaintiff show
“(1) ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original.”
Feist Publ'ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340, 361 (1991). Plaintiff's claim for
copyright infringement alleges:
Defendant willfully infringed upon Plaintiff's
copyrighted Photographs in violation of Title 17 of the U.S.
Code, in that it used, published, communicated, benefited
through, posted, publicized, and otherwise held out to the
public for commercial benefit, the original and unique
Photographs of the Plaintiff without Plaintiff's consent
by manufacturing and selling Infringing Displates on
does not dispute that Plaintiff has met the first prong.
However, Displate argues that Plaintiff cannot meet the
second prong because Displate is only a subsidiary of GWD and
does not own the Website, and therefore cannot be responsible
for the alleged copyright infringement in this case.
participants in copyright infringement are jointly and
severally liable as tortfeasors. E.g., Playboy
Enters., Inc. v. Webbworld, Inc., 991 F.Supp. 543, 553
(N.D. Tex. 1997), aff'd mem., 168 F.3d 486 (5th
Cir. 1999); see also Sygma Photo News, Inc. v. High Soc.
Magazine, Inc., 778 F.2d 89, 92 (2d Cir. 1985)
(“All persons and corporations who participate in,
exercise control over, or benefit from the infringement are
jointly and severally liable as copyright
infringers.”); Swallow Turn Music v. Wilson,
831 F.Supp. 575, 579 (E.D. Tex. 1993); Fermata Int'l
Melodies, Inc. v. Champions Golf Club, Inc., 712 F.Supp.
1257, 1262 (S.D. Tex. 1989)). “Where liability is joint
and several, a plaintiff may sue one or more of the joint
tortfeasors at its discretion.” Broad. Music, Inc.
v. Armstrong, 2013 WL 3874082, at *3 (W.D. Tex. July 24,
2013). In this case, GWD and Displate could both ...