Peterman v. Republican Nat'l Comm., CV 17–66–M–DLC

CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)
Writing for the CourtDana L. Christensen, Chief Judge
Citation320 F.Supp.3d 1151
Parties Erika PETERMAN, Plaintiff, v. REPUBLICAN NATIONAL COMMITTEE, Defendant.
Docket NumberCV 17–66–M–DLC
Decision Date19 March 2018

320 F.Supp.3d 1151

Erika PETERMAN, Plaintiff,

CV 17–66–M–DLC

United States District Court, D. Montana, Missoula Division.

Signed March 19, 2018

320 F.Supp.3d 1155

Erin M. Erickson, Bohyer, Erickson, Beaudette & Tranel, P.C., Missoula, MT, for Plaintiff.

Ari S. Meltzer, Pro Hac Vice, David E. Weslow, Pro Hac Vice, Wiley Rein LLP, Washington, DC, Mark S. Williams, Williams Law Firm, Missoula, MT, for Defendant.


Dana L. Christensen, Chief Judge

Before the Court is Defendant Republican National Committee's ("RNC") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant argues that this case should be dismissed because: (1) RNC's use of Plaintiff's photograph constituted a fair use under federal copyright law; (2) Plaintiff has failed to state a claim for intentional interference with prospective economic advantage; and (3)

320 F.Supp.3d 1156

Plaintiff's state law claim for intentional interference with economic advantage is preempted by federal copyright law. For the reasons explained below, the Court grants the motion in part and denies the motion in part.


Plaintiff Erika Peterman ("Peterman") is a photographer and is the author and owner of the copyright in Peterman's photograph ("Work"). Defendant RNC is a U.S. political organization responsible for developing and promoting the Republican political platform, as well as coordinating fundraising and election strategy. RNC previously campaigned on behalf of Montana U.S. Representative Greg Gianforte in Montana's Special Election to fill its lone Congressional seat in the U.S House of Representatives in 2017.

On March 18, 2017, Peterman contracted with the Montana Democratic Party to take photographs at the annual Mansfield–Metcalf Dinner in Helena, Montana. She was asked to take photographs of Democratic Candidate Rob Quist ("Quist") who was the focus of the event. The Work depicts Quist, wearing a cattleman's hat from behind, with three bright lights in the distance. On March 21, 2017, Peterman edited and sent her photographs to the Montana Democratic Party and gave limited license to the Montana Democratic Party and Quist's campaign to use the Work. Peterman filed for registration of her Work with the U.S. Copyright Office on May 12, 2017.

On May 9, 2017, Peterman was notified that RNC had sent out mass direct mailings using her Work to negatively depict Quist. The image on the RNC mailer is a direct copy of Peterman's Work, altered with a treble clef inserted over the bottom left of the image and the text, "For Montana Conservatives, Liberal Rob Quist Can't Hit the Right Note." The back of the mailers contained standard political advertisement disclaimer language that they were paid for by RNC and were not authorized by any candidate or candidate's committee.

On May 16, 2017, Peterman filed her Complaint against RNC alleging copyright infringement and intentional interference with economic advantage based on RNC copying, using, and distributing her Work. (Doc. 1.) On September 9, 2017, RNC filed a Motion to Dismiss for Failure to State a Claim, arguing that its use of the Work constituted a fair use under federal copyright law and that Peterman failed to state a claim for intentional interference with economic advantage. (Doc. 7.) Additionally, RNC argued that Peterman's state law claim for intentional interference with economic advantage was preempted by federal copyright law. (Id. )


Rule 12(b)(6) motions test the legal sufficiency of a pleading. Fed. R. Civ. P. 12(b)(6). Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim has facial plausibility when the court can draw a "reasonable inference" from the facts alleged that the defendant is liable for the misconduct alleged. Id. These facts need not be overly specific, but they must "give the defendant fair notice of what the...claim is and the

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grounds upon which it rests." Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

Under Rule 12(b)(6), the court is generally limited to the allegations of the complaint, "which are accepted as true and construed in the light most favorable to the plaintiff." Lazy Y Ranch LTD v. Behrens , 546 F.3d 580, 588 (9th Cir. 2008). Nonetheless, a court may dismiss a complaint if it lacks a cognizable legal theory. SmileCare Dental Group v. Delta Dental Plan of California, Inc. , 88 F.3d 780, 783 (9th Cir. 1996). Dismissal for failure to state a claim is proper only "if it appears beyond doubt" that the non-moving party "can prove no set of facts which would entitle him to relief." Vasquez v. L.A. County , 487 F.3d 1246, 1249 (9th Cir. 2007) (internal quotation marks and citation omitted).

The "assertion of fair use may be considered on a motion to dismiss, which requires the court to consider all allegations to be true, in a manner substantially similar to consideration of the same issue on a motion for summary judgment, where no material facts are in dispute." See Leadsinger, Inc. v. BMG Music Publ'g , 512 F.3d 522, 530 (9th Cir. 2008). Fair use doctrine "presents a mixed question of law and fact" that "requires a case-by-case determination whether a particular use is fair." Harper & Row Publishers, Inc. v. Nation Enters. , 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). However, "[i]f there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as fair use of the copyrighted work.' " Hustler Magazine, Inc. v. Moral Majority, Inc. , 796 F.2d 1148, 1151 (9th Cir. 1986). While a plaintiff must plead facts sufficient to prove a justiciable cause of action, it is not necessary to plead facts that disprove fair use to survive a Rule 12(b)(6) motion to dismiss. See Garner v. Higgins , 2015 WL 574352, at *3 (W.D. Va. Feb. 11, 2015).


I. Copyright Infringement

Peterman claims that RNC violated 17 U.S.C. § 106 by infringing her protected copyright in her Work. (Doc. 1 at 5–7.) RNC seeks dismissal of Peterman's copyright infringement claim on the basis of fair use. (Doc. 8 at 4.) To state a claim for copyright infringement, a plaintiff must allege: (1) ownership of a valid copyright, and (2) copying of a protectable expression by the defendant. Baxter v. MCA, Inc. , 812 F.2d 421, 423 (9th Cir. 1987). Under Section 501 of the Copyright Act, "[t]he legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it." 17 U.S.C. § 501(b).

The Copyright Act provides that the "fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified for that section, for purposes such as criticism, comment, news report, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." 17 U.S.C. § 107. When determining whether a use constitutes a "fair use," the Copyright Act directs courts to consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the work used

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in relation to the work as a whole; and (4) the effect of the use on the potential market for or value of the work. Id.

Fair use "permits the use of copyrighted works without the copyright owner's consent under certain situations. The defense encourages and allows the development of new ideas ... thus providing a necessary counterbalance to the copyright law's goal of protecting creators' work product." Perfect 10, Inc. v., Inc. , 508 F.3d 1146, 1163 (9th Cir. 2007). As an affirmative defense, fair use "presumes that unauthorized copying has occurred, and is instead aimed at whether the defendant's use was fair." Monge v. Maya Magazines, Inc. , 688 F.3d 1164, 1170 (9th Cir. 2012). The factors are "not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis." Campbell v. Acuff–Rose Music, Inc. , 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (citations omitted).

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