Andersen et al v. Stability AI Ltd. et al

Filing 76

Request for Judicial Notice re 74 Reply to Opposition/Response filed byMidjourney, Inc.. (Related document(s) 74 ) (Dunning, Angela) (Filed on 7/3/2023)

Case 3:23-cv-00201-WHO Document 76 Filed 07/03/23 Page 1 of 5

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COOLEY LLP
ANGELA L. DUNNING (212047)
[e-mail]
KAYLA BLAKER (pro hac vice)
[e-mail]
J. ASHETON LEMAY (pro hac vice)
[e-mail]
3175 Hanover Street
Palo Alto, California 94304-1130
Telephone:
[phone]
Facsimile:
[phone]
JUDD D. LAUTER (290945)
[e-mail]
3 Embarcadero Center, 20th Floor
San Francisco, CA 94111
Telephone:
[phone]
Facsimile:
[phone]
Counsel for Defendant Midjourney, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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SARAH ANDERSEN, an individual;
KELLY MCKERNAN, an individual;
KARLA ORTIZ, an individual,
Individual and Representative Plaintiffs,
v.
STABILITY AI LTD., a UK corporation;
STABILITY AI, INC., a Delaware
corporation; MIDJOURNEY, INC., a
Delaware corporation; DEVIANTART, INC.,
a Delaware corporation,
Defendants.

Case No. 3:23-cv-00201-WHO
REPLY REQUEST FOR JUDICIAL NOTICE
AND CONSIDERATION OF DOCUMENTS
INCORPORATED BY REFERENCE IN
SUPPORT OF DEFENDANT MIDJOURNEY’S
MOTION TO DISMISS COMPLAINT AND TO
STRIKE CLASS CLAIMS
Date:
July 19, 2023
Time:
2:00 p.m.
Courtroom: 2, 17th Floor
Judge:
William H. Orrick
Trial Date: None
Date Action Filed: January 13, 2023

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COOLEY LLP
ATTORNEYS AT LAW

REPLY RJN I/S/O MIDJOURNEY’S MOTION TO
DISMISS AND TO STRIKE CLASS CLAIMS
3:23-CV-00201-WHO

Case 3:23-cv-00201-WHO Document 76 Filed 07/03/23 Page 2 of 5

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I.

INTRODUCTION

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By its Request for Judicial Notice and Consideration of Documents Incorporated by

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Reference (Dkt. 53) (“RJN”), Midjourney1 asked the Court to consider, in support of its motion to

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dismiss, the contents of four publicly available websites Plaintiffs cited to and relied on in the

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Complaint, designated as Exhibits A through D to the Lauter Declaration (Dkt. 52). According to

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their opposition (Dkt. 68), Plaintiffs “only oppose the [RJN] as it pertains to Exhibit D.” (Opp. 1

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n.1.) Exhibit D is “Midjourney’s website located at www.midjourney.com,” which Plaintiffs rely

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on throughout the Complaint and cite at paragraphs 133, 208 and 219. The contents of this website

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are both incorporated by reference in the Complaint and the proper subject of judicial notice, and

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the Court should consider them in ruling on Midjourney’s motion to dismiss.

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II.

THE COURT SHOULD CONSIDER MIDJOURNEY’S
ON MIDJOURNEY’S MOTION TO DISMISS

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WEBSITE (LAUTER EX. D) IN RULING

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A.

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As an initial matter, Plaintiff’s opposition misconstrues Exhibit D, which they characterize

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as “a screenshot of the landing page on Midjourney’s website.” (Opp. 1 n.1.) In fact, as the RJN

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makes clear, Exhibit D is not just a screenshot from the website, but the website as a whole.2 By

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its RJN, Midjourney was inviting the Court to visit its website to view any and all content available

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there.

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incomplete, does not paint an “accurate picture of [Midjourney’s] website,” is “only a snapshot of

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a single moment of a single page,” and omits an “animation that plays when a visitor first lands on

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[the] home page” (Opp. 3–5)—are misdirected.

Accordingly, Plaintiffs’ various objections to consideration of Exhibit D—that it is

With the true contours of Exhibit D in mind, the website is plainly incorporated by reference

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Midjourney’s Website Is Incorporated By Reference in the Complaint

because Plaintiffs repeatedly cite to and rely on its contents in their Complaint. To wit:


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Paragraph 133 quotes from the website in describing Midjourney’s funding and staffing;

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COOLEY LLP
ATTORNEYS AT LAW

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Unless otherwise stated, capitalized terms not defined herein are as defined in Midjourney’s
motion to dismiss and RJN (Dkts. 52, 53); citations to “¶ _” are to the Complaint’s paragraphs; and
all emphases are added.
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Midjourney included a screenshot of the homepage as a representative example of a page from
the website because it obviously could not reproduce an entire website as an exhibit to a court filing.
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REPLY RJN I/S/O MIDJOURNEY’S MOTION TO
DISMISS AND TO STRIKE CLASS CLAIMS
3:23-CV-00201-WHO

Case 3:23-cv-00201-WHO Document 76 Filed 07/03/23 Page 3 of 5

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

Paragraph 208 asserts that Midjourney has emphasized the ability of its platform “to create

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images based on ‘in the style’ prompts” and this “functionality was prominent and used throughout

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Defendants’ apps, website, and social media posts”; and

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Paragraph 219 alleges that Midjourney’s “use of Plaintiffs’ names and identities was

prominent and used throughout [its] apps, website, and social media posts.”

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“Because the website is linked in the complaint and described numerous times, … it is

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incorporated by reference.” Dfinity Found. v. Meta Platforms, Inc., 2022 WL 16857036, at *4 n.

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8 (N.D. Cal. Nov. 10, 2022) (Breyer, J.) (considering contents of Meta’s website in ruling on its

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motion to dismiss). See also United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (A

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document is “incorporated by reference into a complaint if the plaintiff refers extensively to the

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document or the document forms the basis of the plaintiff’s claim.”); Khoja v. Orexigen

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Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (same). And where a document is

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incorporated by reference, the court “may treat … [it] as part of the complaint, and thus may assume

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that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342

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F.3d at 908. Indeed, the purpose of the doctrine is to “prevent[] plaintiffs from selecting only

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portions of documents that support their claims, while omitting portions of those very documents

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that weaken—or doom—their claims.” Khoja, 899 F.3d at 1002; see also Swartz v. KPMG LLP,

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476 F.3d 756, 763 (9th Cir. 2007) (doctrine “prevent[s] plaintiffs from surviving a Rule 12(b)(6)

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motion by deliberately omitting documents upon which their claims are based”) (alterations and

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internal quotations omitted). That is exactly what Plaintiffs improperly seek to do here.

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Plaintiffs necessarily rely on the contents of Midjourney’s website in leveling the

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conclusory (and baseless) accusation that Midjourney makes “prominent” “use of Plaintiffs’ names

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and identities” “throughout” its “website.” (¶ 219.) That is the purported factual basis for

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Plaintiffs’ claims for violation of their common law and statutory rights of publicity. And if it were

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actually the case that Midjourney made any such use on its website, one would expect Plaintiffs to

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cite an example. But they do not, because they cannot.

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The Court need not accept as true Plaintiffs’ vague and self-serving say-so that Midjourney

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uses their names on its website. Daniels-Hall v. Nat’l Exuc. Ass’n, 629 F.3d 992, 998 (9th Cir.

COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

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REPLY RJN I/S/O MIDJOURNEY’S MOTION TO
DISMISS AND TO STRIKE CLASS CLAIMS
3:23-CV-00201-WHO

Case 3:23-cv-00201-WHO Document 76 Filed 07/03/23 Page 4 of 5

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2010). Nor must it limit its review of the website to the portions Plaintiffs highlight in their

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Complaint and Opposition. Rather, the Court is entitled under the incorporation by reference

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doctrine to look at the full contents of the website to confirm whether, in fact, any such purported

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use of Plaintiffs’ names is occurring there. There is no such use, as Plaintiffs well know, which is

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why they breathlessly insist the Court should “look away” and ignore the very website upon which

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they claim to rely.

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B.

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By law, courts may take judicial notice of a fact that is “not subject to reasonable dispute

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because it … can be accurately and readily determined from sources whose accuracy cannot

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reasonably be questioned.” Fed. R. Evid. 201(b). This extends to the contents of Midjourney’s

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website, which are verifiable by anyone who visits it. Gallagher v. Bayer AG, 2015 WL 1056480,

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at *3 (N.D. Cal. Mar. 10, 2015) (taking judicial notice of screenshots of defendants’ website)

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(Orrick, J.). Courts regularly take judicial notice of “information on … webpages that [Plaintiffs]

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reference[]” in their pleadings. See Love v. Ashford San Francisco II LP, No. 20-cv-8458-EMC,

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2021 WL 1428372, at *3 (N.D. Cal. Apr. 15, 2021) (quoting Daniels-Hall v. Nat’l Educ. Ass’n,

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629 F.3d 992, 998 (9th Cir. 2010)); see also Whitaker v. Montes, No. 21-cv-679-EMC, 2021 WL

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1839713, at *1 (N.D. Cal. May 7, 2021) (taking judicial notice of website screenshots over

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objection from plaintiff because “that website information comes from a URL that matches the

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URL provided in the complaint [and] there is no dispute ... that the website information matches

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what can currently be found on [d]efendants’ website”).

The Midjourney Website Is Also Subject to Judicial Notice

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Here, Plaintiffs have alleged that Midjourney’s website makes prominent use of their

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names. (¶ 219.) In reality, it makes no such use, and the Court is permitted to take judicial notice

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of that readily ascertainable fact, which destroys their publicity claims.

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Implicitly acknowledging that they cannot prevent the Court from reviewing the website

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they rely on to see if it says what they claim, Plaintiffs now appear to abandon their allegation that

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“Plaintiffs’ names and identities” prominently appear on the Midjourney website, in favor of a more

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generalized charge that Midjourney has provided guidance on constructing prompts “invoking

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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

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REPLY RJN I/S/O MIDJOURNEY’S MOTION TO
DISMISS AND TO STRIKE CLASS CLAIMS
3:23-CV-00201-WHO

Case 3:23-cv-00201-WHO Document 76 Filed 07/03/23 Page 5 of 5

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unique artists to get a unique style” and has used other “artists’ names” (Opp. 4–5 & Saveri Exs.

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1–3.) But this is both improper and unavailing.

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It is improper because, by Plaintiffs’ admission (Dkt. 68-1 ¶¶ 2, 3), and as confirmed by the

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URL in the footer of each document (Saveri Exs. 1, 2) the first two exhibits are not from the

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Midjourney website, but come from a third party website (https://github.com).

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Midjourney website, the contents of the GitHub website are not pleaded or incorporated by

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reference in the Complaint and the extracted pages Plaintiffs cite are not the proper subject of

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judicial notice because there is no way to ascertain the accuracy of the information they contain (or

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where it even comes from).

Unlike the

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Plaintiffs’ reliance on these new materials is unavailing because none reflect use of the

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Plaintiffs’ names, which is the only relevant question. Named Plaintiffs in this suit (Andersen,

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Ortiz, and McKernan) have no standing or basis to challenge use of any names but their own. Their

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names do not appear on any page of the Midjourney website, and Plaintiffs do not claim that they

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do (or ever have). Accordingly, even if the Court were to consider Plaintiffs’ new materials (it

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should not), they would serve only to prove Midjourney’s point: the Midjourney website does not

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mention Plaintiffs. The Court can and should take judicial notice of that undisputed fact.

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III.

CONCLUSION

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In ruling on Midjourney’s Motion, the Court should: (1) consider the websites comprising

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Lauter Exhibits A through D under the incorporation by reference doctrine and, (2) to the extent it

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is not incorporated by reference, take judicial notice of Exhibit D, comprising the contents of the

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website available at www.midjourney.com.

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Dated: July 3, 2023

COOLEY LLP

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By: /s/ Angela L. Dunning
Angela L. Dunning

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Attorneys for Defendant
MIDJOURNEY, INC.

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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

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REPLY RJN I/S/O MIDJOURNEY’S MOTION TO
DISMISS AND TO STRIKE CLASS CLAIMS
3:23-CV-00201-WHO