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Oppenheimer v. Deiss

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

December 3, 2019

DAVID OPPENHEIMER, Plaintiff
v.
RYAN KYLE DEISS, JASON JON BURKLE, THOMAS LITCHFIELD, STARTUP JUNGLE, LLC, AND DIGITAL MARKETER LABS, LLC D/B/A STARTUP JUNGLE, Defendants

          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 Defendants Ryan Kyle Deiss, Jason Jon Burkle, and Thomas Litchfield's Rule 12(b)(6) Motion to Dismiss, filed July 22, 2019 (Dkt. No. 13), and Plaintiff's Response, filed on August 5, 2019 (Dkt. No. 15). Defendants did not file a Reply. On August 7, 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.

         I. BACKGROUND

         Plaintiff David Oppenheimer (“Plaintiff”) is a professional photographer who sells and licenses his photographs on his website www.performanceimpressions.com. At issue in this case is one of Plaintiff's copyrighted photographs, titled “Travel and Event Photography from December 2013 by David Oppenheimer, ” which depicts a small portion of Times Square and several skyscrapers of the New York City Skyline. Exh. 11-1 (the “Photograph”).[1] Plaintiff contends that the Photograph “prominently displayed his CMI [copyright management information] in the caption and with a watermark, as well as embedded in the metadata of the Work.” Dkt. No. 11 at ¶ 13.

         Plaintiff alleges that in April 2017, he discovered that the Photograph was being published and displayed without his authorization, license, or knowledge on the website startupjungle.com. On April 16, 2019, Plaintiff filed this copyright infringement lawsuit under the Copyright Act, 17 U.S.C. § 106, against the owner of the website, Startup Jungle, LLC (“Startup Jungle”), and its parent company Digital Marketer Labs, LLC d/b/a Startup Jungle (“Digital Marketer”) (together, “Corporate Defendants”), as well as corporate officers Ryan Kyle Deiss, Jason Jon Burkle, and Thomas Litchfield (“Individual Defendants”). Plaintiff's First Amended Complaint alleges reckless/willful and non-willful copyright infringement against all Defendants, and vicarious and contributory copyright infringement against the Individual Defendants.

         On July 22, 2019, the Individual Defendants filed the instant Motion to Dismiss, arguing that Plaintiff's vicarious and contributory copyright infringement claims should be dismissed under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff's allegations are conclusory and threadbare.

         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).

         III. ANALYSIS

         There are two types of copyright infringement: direct and secondary. BWP Media USA, Inc. v. T & S Software Assocs., Inc., 852 F.3d 436, 439 (5th Cir.), cert. denied, 138 S.Ct. 236 (2017). Direct copyright infringement applies when an actor personally engages in infringing conduct. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984). Secondary liability, by contrast, is a means of holding defendants responsible for infringement by third parties, even when the defendants “have not themselves engaged in the infringing activity.” Id. at 435. It applies when a defendant “intentionally induc[es] or encourag[es]” infringing acts by others or profits from such acts “while declining to exercise a right to stop or limit [them].” Metro- Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). While Plaintiff has alleged both direct and secondary copyright infringement in this case, the Individual Defendants seek to dismiss only Plaintiff's secondary infringement claims.

         A. Vicarious Infringement

         Under a vicarious theory of liability for copyright infringement, a corporate officer may be held vicariously liable if (1) the officer “profits directly from the infringement, ” and (2) “has a right and ability to supervise the direct infringer, even if the defendant ...


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