Denison v. Larkin et al
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 8/13/2014:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Jerome Larkin, Melissa Smart, Sharon Opryszek, )
Leah Black, Nextpoint, Inc and the Illinois Attorney )
Registration and Discipline Commission,
Joanne M. Denison,
Judge Amy J. St. Eve
MEMORANDUM OPINION AND ORDER.
AMY J. ST. EVE, District Court Judge:
Plaintiff JoAnne M. Denison (“Plaintiff”) brings this action against Defendants Jerome
Larkin, Sharon Opryszek, Melissa Smart, Leah Black, and Nextpoint (collectively,
“Defendants”) alleging copyright infringement, vicarious copyright infringement and
contributory copyright infringement in violation of 17 U.S.C §101 et seq. Defendants move to
dismiss Plaintiff’s Complaint in its entirety. Jerome Larkin, Sharon Opryszek, Melissa Smart,
and Leah Black (collectively, the “IARDC Defendants”) move to dismiss for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6) 1. Nextpoint also moves to dismiss
for failure to state a claim pursuant to Rule 12(b)(6). For the following reasons, the Court grants
Defendants’ motions to dismiss.
1 The IARDC Defendants also raised the Younger doctrine as a basis for dismissal. Because
the Court is dismissing Plaintiff’s claims for failure to state a claim pursuant to Rule 12(b)(6), it does not
address Defendants’ argument for abstention pursuant to the Younger doctrine.
This case arises out of an Illinois Attorney Registration and Disciplinary Commission
(“IARDC”) disciplinary proceeding. Plaintiff, a licensed attorney in the state of Illinois, is suing
the IARDC and Nextpoint for using portions of her copyrighted Blog (“Blog”) as evidence
against her in an attorney disciplinary proceeding. The IARDC has alleged that Plaintiff made
false statements about judges and other lawyers on her Blog, which addresses the guardianship
proceeding of Mary Sykes. (R. 1-4, Pl. Exhibit C ¶ 6.)3
Mary Sykes was a 90-year-old woman who was put into guardianship in December of
2009. (R. 1, Compl. ¶ 6.) Plaintiff investigated Ms. Sykes’ case and allegedly found “a large
number of irregularities” in the case. (Id.) Plaintiff believes that Ms. Sykes was a victim of
courtroom corruption. (Id.)
In late 2011, Plaintiff created the Blog to, in her words, “provide a forum for the friends
and relatives of Mary Sykes, a probate victim, to speak out against corruption in the courtroom.”
(R.1, Compl. ¶ 6.) Plaintiff applied for and received a copyright registration for the Blog on
January 26, 2013. (R 1-4, Pl. Exhibit A.) Plaintiff posted her own writings as well as the
writings of others on the Blog. The writings included allegations of corruption in the Probate
Court of Cook County, that Sykes was the victim of elder abuse, and that the guardians ad litem
and the court had physically or mentally harmed Sykes. (R. 1-4, Pl. Exhibit C ¶ 6.) This
The Court accepts Plaintiff’s factual allegations as true for purposes of Rule 12(b)(6).
Plaintiff submitted a redacted version of the IARDC complaint against her. The Court may take note of
the IARDC proceeding against Plaintiff in this motion to dismiss because the IARDC complaint is a
public record. Ill. S. Ct. R. 766(a) (attorney disciplinary proceedings are public). See Ennenga v. Starns,
677 F.3d 766, 773-74 (7th Cir. 2012) (“Taking judicial notice of matters of public record need not convert
a motion to dismiss into a motion for summary judgment”). Defendants filed the un-redacted IARDC
complaint as R. 24-1, Defendant’s Exhibit 1.
guardianship proceeding has generated several state and federal proceedings involving Plaintiff
and her associate, Kenneth Ditkowsky.4
IARDC Action Against Plaintiff
The Illinois Supreme Court has the power to discipline attorneys who have been admitted
to practice in the state of Illinois. In re Thomas, 356 Ill. Dec. 769, 791 (Ill. 2012) (citing In re
Mitan, 75 Ill. 2d 118, 123, 387 N.E. 2d 278 (1979), cert. denied, 444 U.S. 916 (1979)). The
Illinois Supreme Court enacted rules governing the discipline of attorneys and created the
IARDC to enforce those rules. Ill. S. Ct. Rules 751-80. The IARDC’s responsibilities include
conducting disciplinary proceedings affecting members of the Illinois bar. Ill. S. Ct. R. 751(a).
Investigations conducted by the IARDC remain private and confidential. Ill. S. Ct. R. 766(a)(1).
The Administrator in this case, Defendant Jerome Larkin, concluded that sufficient
evidence existed to establish misconduct by Plaintiff and brought the matter to the Inquiry
Board, which determines whether to file a complaint with the Hearing Board, pursuant to Ill. S.
Ct. R. 753(a)(2). If the Inquiry Board decides to file a complaint based on the misconduct, the
Administrator files the complaint with the Hearing Board. Ill. S. Ct. R. 753(b). Defendants
Melissa Smart, Sharon Opryszek and Lea Black are IARDC attorneys who represent Mr. Larkin
before the Hearing Board. The Hearing Board can recommend discipline, dismissal of the
complaint or petition, or nondisciplinary disposition. Ill. S. Ct. R. 753(c)(3). Disciplinary
actions include disbarment, suspension, censure, and reprimand. Ill. S. Ct. R. 770.
Ditkowsky, 2012PR00014 available at http://www.iardc.org/ardcroll.asp (Review Board Dec. 5, 2013)
(recommendation to the Illinois Supreme Court that Mr. Ditkowsky be suspended four years for making
statements the lawyer knows to be false or with reckless disregard for its truth in regards to the Sykes
matter); Ditkowsky, M.R. 26516 available at http://www.iardc.org/ardcroll.asp (Ill. Order March 15,
2014) (Illinois Supreme Court Order suspending Mr. Ditkowsky for matters related to the Sykes case);
Ditkowsky and Denison v. Stern, et al., No. 14-cv-375, 2014 WL 1607587 (N.D. Ill. Apr. 21, 2014) (Mr.
Ditkowsky and Ms. Denison sued Defendant Larkin and others for allegedly violating their First, Fifth
and Fourteenth Amendment rights and for intrusion upon seclusion after the IARDC began a proceeding
against them for making false statements. Both counts were dismissed for failure to state a claim).
Upon the filing of the recommendation of the Hearing Board, either party may appeal to
the Review Board. Ill. S. Ct. R. 753(d). The Review Board presides over an appellate review of
the Hearing Board’s determination. Ill. S. Ct. R. 753(d)(1). The Review Board may approve,
reject or modify the recommendation of the Hearing Board. Ill. S. Ct. R. 753(d)(3).
Additionally, the Review Board may make additional findings or may remand for further action.
Id. Either party may appeal the report and recommendation of the Review Board to the Illinois
Supreme Court. Ill. S. Ct. R. 753(e).
Defendant Black filed a disciplinary complaint on behalf of Defendant Larkin against
Plaintiff alleging professional misconduct in making false statements on her Blog. (R 1-4, Pl.
Exhibit C ¶ 10.) The IARDC complaint alleged that Plaintiff wrote in her Blog that the judges,
guardians ad litem, and other attorneys involved in the guardianship proceedings engaged in
improprieties including theft and embezzlement from the estate of the Ms. Sykes. (Id. ¶¶ 4-8.)
The IARDC alleged that these claims were false and brought an action against Plaintiff for:
a) making a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or integrity of a
judge, adjudicatory officer or public legal officer, in violation of Rule 8.2 of
the Illinois Rules of Professional Conduct;
b) conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation
of Rule 8.4(c) of the Illinois Rules of Professional Conduct;
c) conduct that is prejudicial to the administration of justice, in violation of Rule
8.4(d) of the Illinois Rules of Professional Conduct;
d) presenting, participating in presenting, or threatening to present criminal
charges to obtain an advantage in a civil matter, in violation of Rule 8.4(g) of
the Illinois Rules of Professional Conduct; and
e) conduct which tends to defeat the administration of justice or to bring the
courts or the legal profession into disrepute.
(Id. ¶ 12.)
Copyright Action Against IARDC and Nextpoint
Plaintiff brought this suit alleging that the IARDC infringed on her copyright by using
“15 paragraphs of text from the Mary Sykes Blog” in its disciplinary complaint which the
IARDC posted on its website. (R.1, Compl. at ¶ 10.) In addition, the ARDC copied “hundreds
of pages from her blog” and maintained them in her case file. (Id. ¶ 13.) Plaintiff alleges the
IARDC copied over 1,000 pages of the Blog and “then incorporated [it] into even further
exhibits.” (Id. ¶¶ 21, 23.) Plaintiff claims the amount copied was “far in excess of what the
IARDC needed for its investigation and trial.” (Id. ¶ 27.) Moreover, Plaintiff alleges that she
sent the IARDC a cease and desist letter and objected to its use of her copyrighted materials. (Id.
¶¶ 11,14.) The IARDC, according to Plaintiff, continued to copy and use portions of her blog for
the disciplinary hearing, including for trial exhibits.
Additionally, Plaintiff alleges that Nextpoint, which produces webpage software data,
also infringed on her copyright by allowing the IARDC to use Nextpoint’s software to capture
her Blog. (Id. ¶ 24.) Plaintiff claims that the copies exceeded the amount necessary for the
IARDC proceeding. (Id. ¶ 34.) In Count I, Plaintiff alleges that the Defendants committed direct
copyright infringement. (Id. ¶ 26.) In Counts II and III, Plaintiff alleges that Defendant Larkin
committed contributory copyright infringement and vicarious copyright infringement. (Id. ¶¶
Plaintiff seeks (1) statutory damages for willful infringement against each and all
Defendants as jointly and severally liable; (2) a preliminary and permanent injunction against
copying portions of Plaintiff’s Blog; (3) an order that Defendants deliver up for destruction by
the United States Marshal all exhibit pages not used at trial and that Defendants pay the cost of
such destruction; (4) an order directing the IARDC to remove the 15 paragraphs of her Blog used
to publish the January 8, 2013 complaint on the IARDC’s website and to mark the omitted
portions “copyrighted material omitted;” and (5) her reasonable attorney’s fees, costs, and other
relief under United States copyright law. (Id. p. 16.)
“A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief
may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a
complaint must include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must
“give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell
Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007) (citation
omitted). Under the federal notice pleading standards, a plaintiffs “factual allegations must be
enough to raise a right to relief above the speculative level.” Id. Put differently, a complaint
must contain sufficient factual content “to allow the court ‘to draw a reasonable inference that
the defendant is liable for the misconduct alleged.’” Charleston v. Board of Trs. of Univ. of Ill.
at Chicago, 741 F.3d 769, 772 (7th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed. 2d 868 (2009)). “In reviewing the sufficiency of a complaint under the
plausibility standard, [courts] accept the well-pleaded facts in the complaint as true.” Alam v.
Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir. 2013). In ruling on a Rule 12(b)(6) motion,
district courts may also consider documents attached to the pleadings without converting the
motion into a motion for summary judgment, as long as the documents are referred to in the
complaint and central to the claims. See Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1
(7th Cir. 2012). Additionally, although a plaintiff need not plead facts in the complaint to defeat
potential affirmative defenses, where “the allegations of the complaint itself set forth everything
necessary to satisfy [an] affirmative defense,” the plaintiff pleads himself out of court. See
Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009).
The IARDC Defendants seek dismissal of the alleged vicarious, contributory and direct
copyright infringement claims pursuant to Rule 12(b)(6) for failure to state a claim. Nextpoint
also seeks dismissal of the direct copyright infringement claim pursuant to Rule 12(b)(6) for
failure to state a claim.
Direct Copyright Infringement
The owner of a copyright has the exclusive right to reproduce the copyrighted work. 17
U.S.C §106(1). Copyright infringement occurs when anyone violates the exclusive rights of a
copyright owner. 17 U.S.C §501(a). “A plaintiff alleging copyright infringement must establish
two elements: ‘(1) ownership of a valid copyright, and (2) copying of the constituent elements of
the work that are original.” Janky v. Lake Cnty. Convention And Visitors Bureau, 576 F.3d 356,
361 (7th Cir. 2009) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.
Ct. 1282, 113 L. Ed. 2d 358 (1991)).
Here, Plaintiff alleges that she owns a copyright for the Blog and that the IARDC made
copies of this Blog. (R.1, Compl. ¶¶ 10-11; 24.) Copying copyrighted material is prima facie
evidence of copyright infringement. 17 U.S.C. §501. If the copying is for a fair use of the
material, however, it does not constitute infringement. 17 U.S.C §107. Fair use is an affirmative
defense to a copyright infringement claim. See Brownmark Films, LLC v. Comedy Ptrs., 682
F.3d 687, 689 (7th Cir. 2012).
The Copyright Act sets forth four, non-exclusive factors that a court must consider in
determining whether a particular use of a copyrighted work is a fair use: “(1) the purpose and
character of the use…; (2) the nature of the copyrighted work; (3) the amount and substantiality
of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use
upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107 (2006). These
factors are “illustrative and not limitative” and “provide only general guidance.” Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994). The
Supreme Court has held that whether a particular form of copying is a fair use is an open-ended
and context-specific inquiry. Id. (“The task is not to be simplified with bright-line rules, for the
statute, like the doctrine it recognizes, calls for case-by-case analysis.”).
Purpose and Character of the Use
The first fair use factor for the Court to consider is the “purpose and character of the use,
including whether such use is of a commercial nature.” 5 17 U.S.C §107(1). The main inquiry is
whether the new work supersedes the objects of the original or adds something new. Harper &
Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S. Ct. 2218, 2231, 85 L. Ed.
2d 588 (1985). See also Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 693 (7th
Cir. 2012) (“Central to determining the purpose and character of a work is whether the new work
merely supersedes the original work, or instead adds something new with a further purpose or of
a different character.”)
The use of copyrighted material for commercial profit weighs against a finding of fair use. See Harper
& Row, 471 U.S. at 539 (“The fact that a publication was commercial as opposed to nonprofit is a
separate factor that tends to weigh against a finding of fair use.”). Plaintiff asserts that the IARDC
proceeding is commercial in nature because, “upon information and belief,” the IARDC sells its decisions
to companies such as Lexis Nexis and Westlaw for paid or unpaid benefits. (R. 1, Compl. ¶ 18.) This
statement is unfounded. The purpose of the IARDC is to “promote and protect the integrity of the legal
profession, at the direction of the Supreme Court, through attorney registration, education, investigation,
prosecution and remedial action.” IARDC Homepage (July 28, 2014), http://www.iardc.org/.
Commercial profit is not part of protecting the integrity of the legal profession.
The purpose and character of the IARDC’s use is unrelated to the purpose of the Blog,
which Plaintiff created to serve as a forum for people to “speak out against corruption in the
courtroom.” (R.1, Compl. ¶ 6.) As Plaintiff alleges, the IARDC used portions of the Blog as
evidence in its disciplinary proceeding against Plaintiff, the author of the Blog. The House
Committee on the Judiciary explicitly listed “reproduction of a work in legislative or judicial
proceedings or reports” as an example of a fair use. H.R. Rep. No. 94-1476, 65 (1976). In
addition, the Seventh Circuit has noted that reproducing copyrighted works for litigation is an
example of the fair use doctrine. Ty, Inc. v. Publications Intern. Ltd., 292 F.3d 512 (7th Cir.
2002). In Ty, Inc., a copyright infringement action, the Seventh Circuit commented on the
characterization of certain books at issue: “An even clearer case is a two-page spread in For the
Love of Beanie Babies entitled “Kitty Corner,” which we reproduce (without Ty’s permission!—
a good example of the fair-use doctrine in action) at the end of this opinion.” Id. at 519. Other
courts have also held that the use of copyrighted material in litigation constitutes a fair use. See,
e.g., Bond v. Blum, 317 F.3d 385, 396 (4th Cir. 2003) (holding that the defendant's use of the
plaintiff's entire copyrighted work in a child custody proceeding ”does not undermine the
protections granted by the [Copyright] Act but only serves the important societal interest in
having evidence before the factfinder”); Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982)
(holding that the city councils use of copyrighted material in the legal proceedings was not “the
same intrinsic use to which the copyright holders expected protection from unauthorized use.”);
Stern v. Does, 978 F. Supp. 2d 1031, 1044-49 (C.D. Cal. 2011) (Reproduction of copyrighted
material for use in litigation or potential litigation is generally fair use, even if the material is
copied in whole.); Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497
F.Supp. 2d 627, 638 (E.D. Pa. 2007) (holding that law firm's copying of an entire set of
copyrighted web pages was justified where the web pages were relevant evidence in litigation).
Copying portions of the Blog for evidence does not supersede the Blog’s purpose as a
forum to discuss purported courtroom corruption. Moreover, it is uncontested that Defendants
used the reproduction of these copyrighted materials in a judicial proceeding. Therefore, the
purpose and character of the Defendants’ use of the Blog, as alleged, weighs heavily in favor of a
finding of fair use.
Nature of the Copyrighted Work
The second fair use factor for the Court to consider is the nature of the copyrighted work.
17 U.S.C. §107(2). This factor “draws on Justice Story’s expression, the ‘value of the materials
used.’” Campbell 510 U.S. at 586 (citing Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841)).
The purpose of copyright law is “to Promote the Progress of Science and useful Arts.” U.S.
Const. art. I, § 8, cl. 8. Fictional and creative works are closer to the heart of copyright law than
factual works. See Stewart v. Abend, 495 U.S. 207, 237–238, 110 S. Ct. 1750, 109 L. ED. 2d
184 (1990) (contrasting fictional short story with factual works); Harper & Row, 471 U.S. at
563–564 (contrasting soon-to-be-published memoir with published speech); Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S 417, 455, n. 40, 104 S. Ct. 774 (1984) (contrasting motion
pictures with news broadcasts). It is easier to establish a defense of fair use when the work is
farther from the heart of copyright law. See Campbell 510 U.S. at 586 (“This factor calls for
recognition that some works are closer to the core of intended copyright protection than others,
with the consequence that fair use is more difficult to establish when the former works are
copied”); Stewart, 495 U.S. at 237 (“In general, fair use is more likely to be found in factual
works than in fictional works”).
Plaintiff asserts that the Blog was a “place to discuss legal issues and strategies, explain
laws and compliance with laws.” (R.1, Compl. ¶ 9.) As alleged, the Blog is closer to a factual
work or published speech than it is to a short story or unpublished memoir. See, e.g., Stewart,
495 U.S. at 237–238 (contrasting fictional short story with factual works); Harper & Row, 471
U.S. at 563–564 (contrasting soon-to-be-published memoir with published speech). The factual
nature of the Blog weighs in favor of a finding of fair use.
The Amount and Substantiality of the Portion Used
The third factor for the Court to consider is the amount and substantiality of the portion
used. 17 U.S.C. § 107(3). This factor considers whether the amount used is reasonable in
relation to the purpose of the copying. Campbell, 510 U.S. at 586. Reasonableness depends on
how much the copy serves as a market substitute for the original. Campbell, 510 U.S. at 588
(“Once enough has been taken to assure identification, how much more is reasonable will
depend, say, on….the likelihood that the [copy] may serve as a market substitute for the
original”). Copying the entire work does not, however, guarantee a claim of copyright
infringement. Sony, 464 U.S. at 449-50 (“the fact that the entire work is reproduced…does not
have its ordinary effect of militating against a finding of fair use”) (citation omitted).
Here, Plaintiff alleges that Defendants copied the entire Blog. As she alleges, however,
the Defendants copied the Blog in connection with the disciplinary proceeding against her. As
the Court has already discussed, this is allowed given the uncontested underlying litigation
purpose of the materials. (supra pp. 8-9.) Further, as alleged, the IARDC only used fifteen
paragraphs as part of the public portion of that proceeding. (R.1, Compl. ¶ 10.) Fifteen
paragraphs is not a market substitute for a Blog that contains over “1,000 pages.” (R.1, Compl. ¶
23.); See Campbell, 510 U.S. at 586, 114 S. Ct. at 1175 (reasonableness depend on the likelihood
that the copy may serve as a market substitute for the original). The amount of the Blog copied
by the IARDC and the significantly smaller amount used by the IARDC was reasonable in
relation to its purpose. Copying the entire Blog serves the important “societal interest in having
evidence before the factfinder.” Bond, 317 F.3d at 396. As such, this factor weighs in favor of a
finding of fair use.
The Effect upon the Potential Market
The fourth fair use factor is “the effect of the use upon the potential market for or value
of the copyrighted work.” 17 U.S.C. §107(4). This factor “requires courts to consider not only
the extent of market harm caused by the particular actions of the alleged infringer, but also
‘whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would
result in a substantially adverse impact on the potential market’ for the original.” Campbell, 510
U.S. at 590 (citing 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A] , p. 13–
102.61 (1993)). This factor “requires a court to consider the effect of the use on the potential
market for the copyrighted work.” Sony, 464 U.S. at 497.
As laid out in Campbell, the Court considers (1) the extent that the copying resulted in
market harm and (2) whether unrestricted and widespread conduct of the sort engaged in by
Defendants would result in a substantially adverse impact on the potential market for the
original. Plaintiff fails to allege that the IARDC’s use of the Blog as evidence had any impact on
any alleged market for the Blog. Plaintiff never sold or offered to sell the Blog. (R.1, Compl. ¶
7.) Indeed, Plaintiff alleges that the Blog “is currently very popular and has experienced at least
44,000 hits to date since its creation.” (Id. at 5.) Further, Plaintiff has not identified any market
for or revenue generated from the Blog. The use of the Blog as evidence in a state disciplinary
proceeding does not create any adverse impact on any perceived market for the Blog. As with
the other factors, this factor weighs in favor of Defendants’ fair use.
This Court, taking all fair use factors into consideration, finds that the copying of the
Blog by the IARDC and Nextpoint, as alleged in the complaint, was a fair use of the copyrighted
material consistent with 17 U.S.C §107. Since Plaintiff’s complaint leaves no possible outcome
but a finding of fair use, there is no valid claim for copyright infringement. Therefore, the Court
dismisses Count I, alleging copyright infringement, for failure to state a claim pursuant to Fed.
R. Civ. P. 12(b)(6).
Vicarious and Contributory Copyright Infringement
In order to have a valid claim for contributory or vicarious copyright infringement,
Plaintiff must allege a valid direct copyright infringement claim. See Monotype Imaging, Inc. v.
Bitstream, Inc., 376 F. Supp. 2d 877, 883 (N.D. Ill. 2005) (“To support a claim for contributory
copyright infringement, a plaintiff must demonstrate (1) direct infringement by a primary
infringer”); Monotype Imaging, Inc. v. Bitstream, Inc., 03 C 4349, 2005 WL 936882 (N.D. Ill.
Apr. 21, 2005) (“In order to support a claim of vicarious infringement, a plaintiff must
demonstrate: (1) direct infringement by a primary infringer”).
The Court dismisses Plaintiff’s claims for contributory copyright infringement (Count II)
and vicarious copyright infringement (Count III) for failure to state a claim pursuant to Rule
12(b)(6) because Defendants copied the Blog for fair use and thus no direct infringement exists.
For these reasons, the Court dismisses with prejudice Plaintiff’s complaint and her claims
of direct, vicarious, and contributory copyright infringement against Defendants Jerome Larkin,
Sharon Opryszek, Melissa Smart, Leah Black, the IARDC, and Nextpoint.
August 13, 2014
AMY J. ST. EVE
United States District Court Judge
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