Griner v. King
| Decision Date | 20 October 2021 |
| Docket Number | 21-CV-4024 CJW-MAR |
| Parties | Laney Marie GRINER and Sam Griner, Plaintiffs, v. Steven Arnold KING, King for Congress, and Does 1-10, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Michael Douglas Steger, Pro Hac Vice, Law Offices of Michael D. Steger PC, Orangeburg, NY, William Jeremiah Hale, Goosmann Law Firm, Omaha, NE, for Plaintiffs.
Michael Keith Blankenship, Pro Hac Vice, Da Vinci's Notebook LLC, Manassas, VA, Daniel B. Shuck, Shuck Law Firm, Sioux City, IA, Michael J. O'Neill, Landmark Legal Foundation, Leesburg, VA, for
Defendants Steven Arnold King, King for Congress.
Daniel B. Shuck, Shuck Law Firm, Sioux City, IA, for Defendant Does 1-10.
TABLE OF CONTENTS
I. INTRODUCTION...––––
II. BACKGROUND...––––
A. Factual Background...––––
B. Procedural History...––––
C. Standard Under FED. R. CIV. P. 12(b)(6)...––––
III. ANALYSIS...––––
A. Defendant King's Personal Liability...––––
B. Copyright Infringement Claim...––––
D. Invasion of Privacy Claim...––––
IV. CONCLUSION...––––
I. INTRODUCTION
This matter is before the Court on defendants’ Motion to Dismiss for Failure to State a Claim. (Doc. 43). Plaintiffs timely resisted this motion. (Doc. 45). For the following reasons, the Court denies defendants’ motion.
II. BACKGROUND
This case involves alleged infringements of a copyrighted photographic work and an unauthorized use of a person's likeness. The following allegations are taken as true unless otherwise noted. The Court will discuss additional facts and law as they become necessary to its analysis.
A. Factual Background
The following facts are taken from plaintiffs’ Amended Complaint, (Doc. 16), and are accepted as true for the purposes of this motion. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Defendant Steven King ("King") is a former Congressman. (Id. , at 5–6). Defendant King for Congress is a campaign committee for defendant Steve King that owns and operates a website at www.steveking.com ("the website"), and posts various videos and pictures on the website to raise money from political donors for defendant King's campaign. (Id. , at 2, 5). Each of the defendants was the "founder, editor in chief, senior editor, agent, affiliate, officer, director, manager, principal, alter-ego, and/or employee" of the remaining defendants and each defendant "at all times had control over the content displayed on the website, acting within the scope of such agency, affiliation, alter-ego relationship and/or employment." (Id. , at 3). Plaintiffs Laney Marie Griner ("Laney") and Sam Griner ("Sam") are individuals residing in Jacksonville, Florida. (Id. , at 2).
Plaintiff Laney owns the registered copyright in a photograph of plaintiff Sam (the "Photograph") that formed the basis of a popular Internet meme titled "Success Kid." (Id. , at 4). The Photograph was registered on February 22, 2012. (Id. , at 4–5). Plaintiff Laney licensed the Photograph commercially to advertisers "including Coca-Cola, General Mills, Microsoft, Vitamin Water, Hot Topic, Virgin Mobil, and many others." (Id. , at 5). Plaintiffs allege that plaintiffs did not license the Photograph to defendants and that defendants used the Photograph "without Plaintiffs’ knowledge or consent." (Id. ).
On or about January 2020, each defendant posted a Success Kid meme based on the Photograph on the Website to raise money for and to solicit volunteers for defendants King and King for Congress. (Id. , at 6, 9). The meme places the image of plaintiff Sam on a different background than that of the Photograph. (Id. , at 9). Each defendant received money from this post. (Id. ).
B. Procedural History
On December 30, 2020, plaintiffs filed a Complaint against defendants Steven King, King for Congress, Winred, Inc., and Does 1–10 in the United States District Court for the District of Columbia. (Doc. 1). On April 7, 2021, plaintiffs filed an Amended Complaint naming the same defendants but including more factual allegations against all defendants. (Docs. 16; 17-1). On May 3, 2021, plaintiffs voluntarily dismissed claims against Winred, Inc. (Doc. 28). On May 17, 2021, the remaining defendants filed a First Motion to Dismiss for Lack of Personal Jurisdiction and Failure to State a Claim, as well as a Motion to Transfer Case. (Doc. 29). On June 2, 2021, both parties moved to transfer this matter to the Northern District of Iowa. (Doc. 32). On June 21, 2021, the case was so transferred. (Doc. 34). On July 21, 2021, defendants Steven Arnold King and King for Congress filed a second Motion to Dismiss for Failure to State a Claim. (Doc. 43).
Plaintiffs’ Amended Complaint claimed the following against both defendants: (1) copyright infringement, (2) violations of the Digital Millennium Copyright Act ("DMCA"), and (3) unauthorized use of likeness. (Doc. 16, at 7-9). In response to defendants’ Motion to Dismiss (Doc. 43), plaintiffs dismissed their second claim for relief, the DMCA claim. (Doc. 45, at 15). Therefore, the Court now considers the claims of (1) copyright infringement and (2) unauthorized use of likeness.
C. Standard Under FED. R. CIV. P. 12(b)(6)
Federal Rule of Civil Procedure 8(a) provides that a complaint must contain "a short and plain statement of the grounds for the court's jurisdiction ... a short and plain statement of the claim showing that the pleader is entitled to relief ... and a demand for the relief sought."
Rule 12(b)(6) provides that a party may assert the defense of failure to state a claim upon which relief can be granted by motion. "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 entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (cleaned up). "Factual allegations must be enough to raise a right to relief above the speculative level," but "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely." Id. at 555-56, 127 S.Ct. 1955. Indeed, a theory asserted need only be plausible, which requires "enough fact to raise a reasonable expectation that discovery will reveal evidence of [the conduct alleged]." Id. at 556, 127 S.Ct. 1955. In ruling on a Rule 12(b)(6) motion, the court must accept as true all the factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party. Simes v. Ark. Jud. Discipline & Disability Comm'n , 734 F.3d 830, 834 (8th Cir. 2013) (citation omitted).
"[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged —but has not shown —that the pleader is entitled to relief." Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (emphasis added) (cleaned up). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. When a pleading contains no more than conclusions, however, those conclusions "are not entitled to the assumption of truth." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. "[T]here is no justification for dismissing a complaint for insufficiency of statement, except where it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim." Leimer v. State Mut. Life Assurance Co. of Worcester , 108 F.2d 302, 306 (8th Cir. 1940) ; Warner v. Wartburg Coll. , No. 21-CV-2029-CJW-MAR, 2021 WL 3276375, at *2 (N.D. Iowa July 30, 2021).
III. ANALYSIS
The Court turns to the parties’ arguments.1 Defendants advance several arguments in support of the Motion to Dismiss. They argue that plaintiffs failed to plead defendant King's personal liability. (Doc. 43-1, at 12-15). They argue that plaintiffs did not meet the pleading standard for copyright infringement claims. (Doc. 47, at 2). They argue that plaintiff Laney did not have copyright in the copy of the Photograph that defendants copied. (Doc. 43-1, at 16-17). They also argue that plaintiff Laney abandoned the copyright in the Photograph. (Id. , at 17). Alternatively, even if plaintiff Laney had copyright in the Photograph, defendants argue that they did not copy protected elements of the Photograph. (Id. , at 18-19). They argue that plaintiffs did not successfully allege access and substantial similarity. (Id. , at 18-19). They also argue that plaintiffs exhausted their rights in the Photograph. (Doc. 47, at 5). Lastly, defendants argue that plaintiffs did not successfully allege invasion of privacy. (Docs. 43-1, at 21-22; 47, at 3). The Court takes each argument in turn.
A. Defendant King's Personal Liability
As a preliminary matter, the Court discusses defendant King's personal liability. Defendants label King for Congress as an unincorporated association and argue that plaintiffs fail to allege facts and circumstances that would make King "personally liable" for the use of the Photograph. (Doc. 43-1, at 12).
Defendants argue that defendant Steven King cannot be personally liable solely by virtue of membership in defendant King for Congress in these circumstances, and points to case law discussing when a member of an association is personally liable for conduct of the association. (Id. , at 12-14). Under the common...
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