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Pierson v. Dostuff Media, LLC

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

October 30, 2019

KRISTEN PIERSON, Plaintiff
v.
DOSTUFF MEDIA, LLC, Defendant

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE.

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

         Before this Court are Defendant's Federal Rule of Civil Procedure 12(b)(6) Motion to Dismiss, filed June 27, 2019 (Dkt. No. 8), and Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, filed July 19, 2019. Defendant did not file a Reply. On September 16, 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 (“Local Rules”).

         I. BACKGROUND

         Plaintiff Kristen Pierson (“Plaintiff”) is a professional photographer in the business of licensing her photographs to online and print media for a fee. In 2011, Plaintiff took photographs of the musical tribute band Lotus Land (the “Photographs”)[1] “for the purpose of showing musicians in performance.” Dkt. No. 1-1 at ¶ 14. Plaintiff registered the Photographs with the United States Copyright Office and was given Copyright Registration Number VA 1-849-561. After receiving the copyright registration, Plaintiff licensed the Photographs to the members of Lotus Land.

         Defendant DoStuff Media, LLC (“Defendant”) is a Texas-based “commercial publisher in the media business” and owns and operates the website www.DoNYC.com (the “Website”). Dkt. No. 11 at p. 2. Plaintiff alleges that Defendant republished the Photographs on its Website[2] in connection with promoting one of Lotus Land's concerts without her permission and without paying the licensing fee for use of the images. Plaintiff alleges that “Defendant used the Photographs for the same purpose for which they were created, namely to show Lotus Land band members in performance.” Dkt. No. 6 at ¶ 17.

         On June 13, 2019, Plaintiff filed her Amended Complaint against Defendant alleging copyright infringement in violation of the Copyright Act, 17 U.S.C. §§ 106, 501. Plaintiff seeks statutory damages up to $150, 000 per work for Defendant's willful infringement of the Photographs, as well as attorney's fees and costs.

         On June 27, 2019, Defendant filed the instant Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff's copyright claims fail because Defendant's use of the Photographs constitutes “fair use” under 17 U.S.C. § 107. Dkt. No. 8 at p. 2. Plaintiff disagrees and argues that the fair use affirmative defense is not applicable in this case.

         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 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.” Id. “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. 2010). “Although dismissal under [R]ule 12(b)(6) may be appropriate based on a successful affirmative defense, that defense must appear on the face of the complaint.” Ironshore Europe DAC v. Schiff Hardin, L.L.P., 912 F.3d 759, 763 (5th Cir. 2019) (quoting Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir. 2017)).

         III. ANALYSIS

         To establish a claim for copyright infringement, Plaintiff must prove that: (1) she owns a valid copyright, and (2) Defendant copied constituent elements of Plaintiff's work that are original. Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004). Defendant does not dispute that Plaintiff has alleged a prima facie claim of copyright infringement. Rather, Defendant argues that Plaintiff's copyright claim fails based on the affirmative defense of fair use under 17 U.S.C. § 107. In response, Plaintiff argues that it is not appropriate to rule on the affirmative defense of fair use at the motion to dismiss stage. Plaintiff also argues that Defendant's fair use affirmative defense fails as matter of law.

         While dismissal under Rule 12(b)(6) may be appropriate based on a successful affirmative defense, as stated above, “that defense must appear on the face of the complaint.” Ironshore Europe, 912 F.3d at 763. The affirmative defense of fair use does not appear on the face of Plaintiff's Amended Complaint. Plaintiff has alleged sufficiently facts at this stage of the case to overcome Defendant's fair use defense in the instant Motion to Dismiss.

         A. The ...


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