Pierson v. Dostuff Media, LLC
| Decision Date | 29 October 2019 |
| Docket Number | Case No. A-19-CV-00435-LY |
| Parties | KRISTEN PIERSON, Plaintiff v. DOSTUFF MEDIA, LLC, Defendant |
| Court | U.S. District Court — Western District of Texas |
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").
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 StatesCopyright 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 Website2 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.
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)).
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.
The Copyright Act grants the copyright holder "exclusive" rights to use and to authorize the use of her work, including the right "to publish, copy, and distribute the author's work." Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985) (quoting 17 U.S.C. § 106). "All reproductions of the work, however, are not within the exclusive domain of the copyright owner; some are in the public domain." Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984). Thus, "[a]ny individual may reproduce a copyrighted work for a 'fair use.'" Id. "From the infancy of copyright protection," the fair use doctrine "has been thought necessary to fulfill copyright's very purpose, '[t]o promote the Progress of Science and useful Arts.'" Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., art. I, § 8, cl. 8). The fair use affirmative defense allows others "to build freely upon the ideas and information conveyed by a work." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
Section 107 of the Copyright Act provides that "the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." 17 U.S.C. § 107.Fair use is an affirmative defense "that can excuse what would otherwise be an infringing use of copyrighted material." Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1238 (11th Cir. 2014).
In determining whether use of a work constitutes fair use, courts consider the following factors:
17 U.S.C. § 107. These factors are non-exclusive, Harper & Row, 471 U.S. at 560, and are to be "weighed together, in light of the purposes of copyright," Campbell, 510 U.S. at 578. Some courts have described "the ultimate test of fair use" as "whether the copyright law's goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it." Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006) (citation and internal quotation marks omitted). However, "[t]he fair-use privilege under § 107 is not designed to protect lazy appropriators." Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 759 (7th Cir. 2014).
Fair use is a mixed question of law and fact and requires a case-by-case determination as to whether a particular use of a copyrighted work is a fair use. Campbell, at 577. The burden of proof is on the defendant to establish the fair use affirmative defense. Id.
Under the first fair use factor, courts look to (1) whether the work is used for commercial or noncommercial purposes, and (2) whether the work is transformative. Id. at 579, 584.
In this case, Defendant does not dispute that it used the Photographs for commercial purposes. Defendant ran the Photographs on its commercial Website to promote an upcoming Lotus Landconcert. The use of the Photographs was not for criticism, comment, or news reporting. Id. at 578. "The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Harper & Row, 471 U.S. at 562. Thus, Defendant's use of the Photographs was for commercial use, and such a finding weighs against a finding of fair use. See id. (); Compaq Comput. Corp. v. Ergonome, Inc., ...
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