Joint Commission on Accreditation of Healthcare Organizations, The et al v. HCPro, Inc. et al

Filing 57

MEMORANDUM Opinion and Order: For the reasons stated in the Court's Memorandum Opinion and Order, the defendants' motions to dismiss [44, 45] are granted without prejudice. The plaintiffs are granted leave to file a third amended complaint on or before 4/27/16. Absent timely filing of an amended complaint, the case will be dismissed with prejudice. Signed by the Honorable John J. Tharp, Jr on 4/13/2016. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THE JOINT COMMISSION ON
ACCREDITATION OF
HEALTHCARE ORGANIZATIONS
and JOINT COMMISSION
RESOURCES, INC.,
Plaintiffs,
v.
THE GREELEY COMPANY, INC. and
FORTIS BUSINESS MEDIA LLC d/b/a
BLR – BUSINESS & LEGAL
RESOURCES,
Defendants.

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No. 14 C 10225
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
The plaintiffs, the Joint Commission on Accreditation of Healthcare Organizations (“the
Joint Commission”) and Joint Commission Resources, Inc. (“JCR”), bring suit against the
defendants, the Greeley Company, Inc. (“Greeley”) and Fortis Business Media LLC (“Fortis”),
alleging copyright infringement under the Copyright Act of 1976, 17 U.S.C. §§ 106, 501. The
defendants have moved to dismiss. See Mts. Dismiss, ECF Nos. 44, 45. For the following
reasons, the motions to dismiss are granted.
BACKGROUND 1
The Joint Commission is a not-for-profit corporation that provides accreditation and
certification services for more than 20,000 health care organizations and programs in the United
States. Sec. Am. Compl. (“SAC”) ¶ 3, ECF No. 42. JCR is also a not-for-profit corporation in the

1

As this is a motion to dismiss, the Court accepts all well-pleaded facts as true and
construes all inferences in favor of the plaintiff. Zemeckis v. Global Credit & Collection Corp.,
679 F.3d 632, 634 (7th Cir. 2012).

health care accreditation industry; the Joint Commission is the sole member of JCR and wholly
controls JCR. SAC ¶¶ 4-5. JCR has the “excusive [sic] right to carry out the Joint Commission’s
education, publication, and accreditation preparation functions, as they pertain to improving
patient safety and quality of care in the health care environment” and “has the right, from The
Joint Commission, to (among other things) copy, sell, distribute, and publish materials owned by
The Joint Commission.” SAC ¶ 4. The Joint Commission licenses its copyrighted works to third
parties who pay licensing fees to exercise some or all of the rights it owns, including
reproduction, distribution, public performance and display of the works, and preparation of
derivative works. SAC ¶ 6.
In 2009, the Joint Commission authored a publication entitled “2009 Comprehensive
Accreditation Manual for Hospitals, Update 2” (“2009 CAMH”). SAC ¶ 9. On June 3, 2015, the
Joint Commission filed an application to register the copyright in the 2009 CAMH with the U.S.
Copyright Office. SAC ¶ 10, Ex. B. As far as the Court is aware, this copyright application
currently remains pending. In 2011, the Joint Commission authored a publication entitled “2011
Comprehensive Accreditation Manual for Hospitals” (“2011 CAMH”). SAC ¶ 11. On November
8, 2011, the U.S. Copyright Office issued Copyright Registration No. TX 7-528-407 to the Joint
Commission for the 2011 CAMH. SAC ¶ 12, Ex. D. On June 15, 2015, the Joint Commission
filed a supplementary registration form with the U.S. Copyright Office for Copyright
Registration No. TX 7-528-407; the supplementary registration seeks to change the author and
copyright claimant from “Joint Commission” and “Joint Commission Resources,” respectively,

2

to “Joint Commission on Accreditation of Healthcare Organizations” for both. SAC ¶ 13, Ex. E.
As far as the Court is aware, the supplemental registration is also still pending. 2
The Joint Commission has licensed the 2009 and 2011 CAMHs to third parties who pay
licensing fees for the right to reproduce, distribute, publicly perform and/or display the works,
and prepare derivative works. SAC ¶ 14. Neither Greeley nor Fortis have ever had any license,
authorization, permission, or consent from the plaintiffs to reproduce, distribute, publicly
perform and/or display the works, or prepare derivative works. SAC ¶ 15. The plaintiffs allege
that the defendants have published text that has been “copied from, is substantially similar to,
and/or is derivative of” the 2009 and 2011 CAMHs. SAC ¶ 17. The plaintiffs allege that the
defendants’ infringing publications include “[f]or example and without limitation, . . . Chapter
Leader’s Guide to Provision of Care (2012 ed.); Chapter Leader’s Guide to Infection Control
(2012 ed.); Chapter Leader’s Guide to Information Management (2012 ed.); Chapter Leader’s
Guide to Life Safety (2013 ed.); Chapter Leader’s Guide to Human Resources (2012 ed.); and
Verify and Comply: Credentialing and Medical Staff Standards Crosswalk, Sixth Edition.” SAC
¶ 17.
The SAC includes two charts of examples “without limitation” of the comparative pages
in the 2009 and 2011 CAMHs and the allegedly infringing pages in the defendants’ publications.

2

There is no indication the supplemental registration has been accepted and that the
corrected registration has been issued. See United States Copyright Office, Circular 8:
Supplementary Copyright Registration, 2 (Apr. 2013), http://copyright.gov/circs/circ08.pdf
(“When a supplementary registration is completed, the Copyright Office will assign it a new
registration number, usually in the same class and series as the basic registration, and issue a
certificate of supplementary registration under that number.”); see also Pugh v. Tribune Co., 521
F.3d 686, 691 n.2 (7th Cir. 2008) (“We may take judicial notice of documents in the public
record . . . without converting a motion to dismiss into a motion for summary judgment.”);
United States ex rel. Dingle v. Bioport Corp., 270 F. Supp. 2d 968, 973 (W.D. Mich. 2003)
(court may take judicial notice of “public records and government documents available from
reliable sources on the Internet”).

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See SAC ¶¶ 18-19. For example, the plaintiffs allege that page 83 of the defendants’ Infection
Control Guide infringes on page NPSG-17 of the 2011 CAMH and that page 124 of the Human
Resources Guide infringes on page HR-6 of the 2011 CAMH. 3 See SAC ¶ 19.
The plaintiffs filed suit on December 19, 2014 against HCPro, Inc. 4 and Fortis, alleging
infringement of their publication, “2013 Comprehensive Accreditation Manual for Hospitals.”
Compl. ¶ 9, ECF No. 1. The plaintiffs filed a First Amended Complaint in May 2015, naming
Greeley as a defendant instead of HCPro, Inc. See First Am. Compl., ECF No. 23. In June 2015,
the plaintiffs filed the Second Amended Complaint against Greeley and Fortis, this time
substituting the 2009 and 2011 CAMHs for the 2013 CAMH as the works that the defendants
have allegedly infringed. Fortis filed a partial motion to dismiss, seeking dismissal of the claims
based on the 2009 CAMH, and Greeley filed a motion to dismiss the entire SAC for failure to
state a claim.
DISCUSSION
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint, not
the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To
survive a motion to dismiss under Rule 12(b)(6), “a complaint must ‘state a claim to relief that is
plausible on its face.’” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “‘A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Adams, 742 F.3d at 728 (quoting Ashcroft v.

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The text of these pages is included infra at 9, 11-13.

4

While the relationship between Greely and HCPro, Inc. is not entirely clear from the
parties’ filings, it appears that Greeley formerly did business as HCPro, Inc. and that it sold some
or all of the assets of HCPro, Inc. to Fortis at some point prior to November 4, 2013. See Greeley
Mem. in Supp. 2 n.4, ECF No. 46; Resp. to Greeley 6, ECF No 51.

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Iqbal, 556 U.S. 662, 678 (2009)). Although notice pleading under Rule 8 is a more lenient
standard than the code pleading that preceded it, “it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. A court must
accept all of the plaintiff’s factual allegations as true when reviewing the complaint, but
conclusory allegations merely restating the elements of a cause of action do not receive this
presumption: “a court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the assumption of
truth.” Id. at 679. “A complaint must allege facts to support a cause of action’s basic elements;
the plaintiff is required to do at least that much.” Adams, 742 F.3d at 728.
To state a claim for copyright infringement, a plaintiff must plausibly allege that (1) the
plaintiff owns a valid copyright; and (2) the defendant copied “constituent elements of the work
that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).
However, “no civil action for infringement of the copyright in any United States work shall be
instituted until preregistration or registration of the copyright claim has been made in accordance
with this title.” 17 U.S.C. § 411(a). The Seventh Circuit has held that compliance with the
registration requirement in § 411(a) “is not a condition of copyright protection but is a
prerequisite to suing for infringement.” Brooks-Ngwenya v. Indianapolis Pub. Sch., 564 F.3d
804, 806 (7th Cir. 2009); see also Reed Elsevier v. Muchnick, 559 U.S. 154, 166-169 (section
411(a)’s registration requirement “does not restrict a federal court’s subject-matter jurisdiction,”
but rather is a “precondition to filing suit,” an element of a copyright infringement claim).
The parties make much of the open question in this Circuit whether merely applying for
copyright registration satisfies § 411(a)’s registration requirement (the “application approach”)
or whether the Copyright Office must have acted on the registration prior to the filing of the suit

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(the “registration approach”). See Greeley Mem. in Supp. 6-7, ECF No. 46; Fortis Mt. Dismiss 38; Resp. to Fortis 1-6, ECF No. 50. Compare Panoramic Stock Images, Ltd. v. John Wiley &
Sons, Inc., 963 F. Supp. 2d 842, 850 (N.D. Ill. 2013) (adopting the application approach), with
TriTeq Lock & Sec. LLC v. Innovative Secured Sols., LLC, No. 10 CV 1304, 2012 WL 394229,
at *4 (N.D. Ill. Feb. 1, 2012) (endorsing the registration approach).
The Court need not weigh in on this debate, however: the plaintiffs filed suit in December
2014 but did not file an application to register the copyright in the 2009 CAMH until June 3,
2015, nearly six months after this lawsuit was instituted. See SAC ¶ 10, Ex. B. “A rule in the
form ‘no action shall be instituted until . . .’ means that the condition must be fulfilled before the
litigation begins. Satisfaction of the condition while the suit is pending does not avoid the need
to start anew.” Brooks-Ngwenya v. Thompson, 202 F. App’x 125, 127 (7th Cir. 2006); see also
Brooks-Ngwenya v. Indianapolis Public Schools, 564 F.3d 804, 806 (7th Cir. 2009); Automation
By Design, Inc. v. Raybestos Prods. Co., 463 F.3d 749, 752 n.1 (7th Cir. 2006); cf. McNeil v.
United States, 508 U.S. 106, 110-11 (1993) (Federal Tort Claims Act, which provides that no
action may be instituted until an administrative claim has been made and resolved, requires
dismissal of a suit filed before the administrative claim’s resolution, even if that step occurs
while the suit is pending); Hallstrom v. Tillamook County, 493 U.S. 20, 25-26 (1989) (statutory
60-day waiting period after giving notice to the EPA before filing suit requires outright dismissal
of premature action rather than keeping it inactive on the docket for the 60-day period); Perez v.
Wisconsin Department of Corrections, 182 F.3d 532, 534-36 (7th Cir. 1999) (“judges must place
enforcement of the statute over a concern for efficient docket management” by dismissing
lawsuits for failure to exhaust administrative remedies as required under 42 U.S.C. § 1997e(a)).

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Thus, the plaintiff’s claims based upon the 2009 CAMH must be dismissed without
prejudice for failure to comply with the precondition in § 411(a). 5 See, e.g., Warrick v. Roberts,
No. 13 C 987, 2013 WL 3754918, at *1-2 (N.D. Ill. July 15, 2013) (dismissing copyright claim
for noncompliance with § 411(a)’s precondition because plaintiffs did not apply for registration
until after filing the lawsuit); TriTeq Lock, 2012 WL 394229, at *5 (dismissing plaintiff’s
copyright claim for failure to satisfy registration precondition where plaintiff applied for
registration a year after initiating the lawsuit); see also Salzman v. Rabineck, No. 11-2434-EFM,
2013 WL 1776706, at *1-2 (D. Kan. Apr. 25, 2013) (citing Brooks-Ngwenya, 202 F. App’x at
126-27) (dismissing copyright claim where plaintiffs had not applied for registration prior to
filing and directing plaintiffs to register and re-file within the statute of limitations, if possible).
I.

Plaintiff JCR’s Interest in the Copyright in the 2011 CAMH
The first element of a claim for copyright infringement is ownership of a valid copyright.

See Feist Publications, 499 U.S. at 361. Greeley argues that the SAC fails to allege that JCR is
an owner of the 2011 CAMH copyright and thus, JCR’s claims must be dismissed. The plaintiffs
argue that although the Joint Commission is the author and owner of the 2011 CAMH, 6 JCR is
an exclusive licensee and, as such, is entitled to sue for infringement.

5

The Court notes that the plaintiffs, while advocating for the application over the
registration approach, did not even respond to Greeley’s argument that the claims based on the
2009 CAMH must be dismissed for failure to apply for copyright registration prior to filing suit.
See Greeley Mem. in Supp. 1, 6-7 n.6; Resp. to Greeley 4, ECF No. 51; Greeley Reply 5, ECF
No. 53.
6

The original registration for the 2011 CAMH lists JCR as the author and copyright
claimant. See SAC Ex. D. The plaintiffs have since filed a supplemental registration seeking to
“correct” this registration to list the Joint Commission as the author and owner of the copyright.
See SAC Ex. E. As noted supra at note 2, there is no indication that the supplemental copyright
has been accepted and that the copyright registration has been updated; however, the
supplemental registration is a public document expressly disavowing JCR as the owner and
author of the 2011 CAMH.

7

Plaintiffs are correct that the “legal or beneficial owner of an exclusive right”—i.e., an
exclusive licensee—may bring suit for infringement of its interest in a copyrighted work. 17
U.S.C. § 501(b); see HyperQuest, Inc. v. N’Site Sols., Inc., 632 F.3d 377, 381-82 (7th Cir. 2011).
The SAC describes JCR’s rights relative to the Joint Commission: JCR has the “excusive [sic]
right to carry out the Joint Commission’s education, publication, and accreditation preparation
functions, as they pertain to improving patient safety and quality of care in the health care
environment” and “has the right, from The Joint Commission, to (among other things) copy, sell,
distribute, and publish materials owned by The Joint Commission.” SAC ¶ 4 (emphasis added).
While JCR has an exclusive right for “education, publication, and accreditation” functions
pertinent to patient safety and quality of care, that contrasts with its right, not delineated as
exclusive, to “copy, sell, distribute, and publish” the Joint Commission’s materials. Additional
inconsistencies in the SAC further undercut the plaintiffs’ exclusive licensee argument: the
plaintiffs state that the “Joint Commission directly and/or indirectly licenses its copyrighted
works to third parties” and that the “Joint Commission has directly and/or indirectly licensed . . .
the 2011 CAMH . . . to third parties who pay licensing fees to (for example) reproduce the
Work[ ], prepare derivative works based on the Work[ ], distribute copies of the Work[ ] . . . .”
SAC ¶¶ 6, 14. If the Joint Commission has licensed the 2011 CAMH to third parties to reproduce
and distribute the work, then JCR cannot have the exclusive license to do so.
As currently pleaded, the SAC does not plausibly allege JCR’s status as an exclusive
licensee, and Greeley’s motion to dismiss JCR’s claims is therefore granted without prejudice.
II.

The Joint Commission’s Failure to State a Claim
The second element of a claim for copyright infringement—that the defendant copied the

plaintiff’s work—can be shown by direct evidence, such as an admission of copying, or may be

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inferred “by showing that the defendant had the opportunity to copy the original (often called
‘access’) and that the two works are ‘substantially similar,’ thus permitting an inference that the
defendant actually did copy the original.” Peters v. West, 692 F.3d 629, 633 (7th Cir. 2012).
Greeley argues that the plaintiffs have failed to allege that the defendants had access to the 2011
CAMH. See Mem. in Supp. 9 (“Plaintiffs do not allege how or when either Defendant had any
opportunity to copy either of the Plaintiff Publications.”). The plaintiffs argue that they do not
need to show access because they have alleged direct evidence of copying. See Resp. to Greeley
7, 9.
The plaintiffs identify six of the defendants’ publications that “include[ ] text that has
been copied from, is substantially similar to, and/or is derivative of” the 2011 CAMH. SAC ¶ 17.
They then include a chart containing two examples of the pages in the defendants’ publications
that infringe on the 2011 CAMH. SAC ¶ 19. The chart indicates that page 124 of the defendants’
Human Resources Guide infringes on page HR-6 of the 2011 CAMH. The relevant text from
each page is identical and reads:
16. For psychiatric hospitals that use Joint Commission
accreditation for deemed status purposes: The director of psychiatric
nursing is a registered nurse who has a master’s degree in psychiatric or
mental health nursing, or its equivalent, from a school of nursing
accredited by the National League for Nursing, or is qualified by
education and experience in the care of the mentally ill. The director of
psychiatric nursing demonstrates competence to participate in
interdisciplinary formulation of individual treatment plans; to give
skilled nursing care and therapy; and to direct, monitor, and evaluate the
nursing care furnished.
18. For psychiatric hospitals that use Joint Commission
accreditation for deemed status purposes: The director of the social
work department or service has a master’s degree from an accredited
school of social work or is qualified by education and experience in the
social services needs of the mentally ill.

9

2011 CAMH HR-6, SAC Ex. C, ECF No. 42-3; Greeley Mt. Dismiss Ex. B 124, ECF No. 44-2. 7
That the allegedly infringing page is copied verbatim from the 2011 CAMH is sufficient
to plausibly allege access: although “access does not entail copying . . . copying entails access.”
Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1170 (7th Cir. 1997). How could an entire
page of the defendants’ publication be identical to the 2011 CAMH if the defendants did not
have access to the work? Plainly, the defendants copied at least one page of the 2011 CAMH.
That necessarily means that they had access to the document. It does not, however, necessarily
mean that there is substantial similarity between the works.
The substantial similarity test is objective: the court must consider “‘whether the accused
work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that
the defendant unlawfully appropriated the plaintiff’s protectible expression by taking material of
substance and value.’” Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, 1011 (7th
Cir. 2005) (quoting Atari, Inc. v. North American Philips Consumer Elecs. Corp., 672 F.2d 607,
614 (7th Cir. 1982), superseded by statute on other grounds). This analysis encompasses a
quantitative component: the violative work must infringe upon a substantial portion of the
plaintiff’s work.
No easy rule of thumb can be stated as to the quantum of fragmented
literal similarity permitted without crossing the line of substantial
similarity. The question in each case is whether the similarity relates to
matter that constitutes a substantial portion of plaintiff’s work—not
whether such material constitutes a substantial portion of defendant’s
work. Thus, for example, the fact that the sampled material is played
throughout defendants’ song cannot establish liability, if that snippet
constitutes an insubstantial portion of plaintiff’s composition.

7

“It is well settled that in deciding a Rule 12(b)(6) motion, a court may consider
‘documents attached to a motion to dismiss . . . if they are referred to in the plaintiff’s complaint
and are central to his claim.’” Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690
(7th Cir. 2012) (quoting Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994)).

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4-13 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 13.03(A)(2)(a) (Matthew
Bender ed. 2015) (emphasis in original).
Here, the plaintiffs have alleged substantial similarity, but they have not supported that
legal conclusion with facts that make it plausible. See Iqbal, 556 U.S. at 679. The plaintiffs
identify only two paragraphs in the defendants’ Human Resources Guide that are copied
verbatim from the plaintiffs’ 742-page work. See supra at 9. The only other evidence of
infringement is one page of the defendants’ Infection Control Guide, which paraphrases one page
of the 2011 CAMH. The plaintiffs’ 2011 CAMH reads:
NPSG.07.06.01
Implement evidence-based practices to prevent indwelling catheterassociated urinary tract infections (CAUTI).
Note: This NPSG is not applicable to pediatric populations. Research
resulting in evidence-based practices was conducted with adults, and
there is no consensus that these practices apply to children.
Elements of Performance for NPSG.07.06.01
A 1. During 2012, plan for the full implementation of this NPSG by
January l, 2013.
Note: Planning may include a number of different activities, such as
assigning responsibility for implementation activities, creating time
lines, identifying resources, and pilot testing.
C 2. Insert indwelling urinary catheters according to established
evidence-based guidelines that address the following:
• Limiting use and duration to situations necessary for patient care
• Using aseptic techniques for site preparation, equipment, and supplies
C 3. Manage indwelling urinary catheters according to established
evidence-based guidelines that address the following:
• Securing catheters for unobstructed urine flow and drainage
• Maintaining the sterility of the urine collection system
• Replacing the urine collection system when required
• Collecting urine samples

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A 4. Measure and monitor catheter-associated urinary tract infection
prevention processes and outcomes in high-volume areas by doing the
following:
• Selecting measures using evidence-based guidelines or best practices
• Monitoring compliance with evidence-based guidelines or best
practices
• Evaluating the effectiveness of prevention efforts
2011 CAMH NPSG-17, SAC Ex. C (emphasis in original). The allegedly infringing page of the
defendants’ Infection Control Guide reads:
NPSG.07.06.01 Use evidence-based practices to prevent CAUTI.
Note EPs that are similar (such as education will not be repeated),
only EPs specific to the prevention of CAUTI are included.
Not applicable to pediatric populations.
Element of performance
Compliance hints
EP 1 Plan for full implementation Have an outline of the current
by January 1, 2013.
state of your organization and
the results of any pilot
programs, measures, or
education your facility has
implemented.
EP 2 Insert Foley catheters using What processes are in place to
evidence-based guidelines:
reinforce appropriate catheter
Limiting use and duration to
use?
situations necessary for patient
Use prevalence surveys for
care.
checking appropriate use and
Using aseptic techniques for site
timely removal to check that the
preparation, equipment, and
seal is intact on the system.
supplies.
EP 3 Manage Foley catheters
Observe practice on patient care
using evidence-based guidelines: units.
Secure catheters to prevent
obstructed urine flow and
drainage.
Maintain sterility of the system.
Replacing the system when
required.
Appropriate collection of urine
samples.

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EP 4 Monitor CAUTI prevention
processes and outcomes in highvolume areas:
Use evidence-based guidelines or
best practices.
Monitoring compliance with
guidelines.
Evaluating the effectiveness of
prevention efforts.

If an organization’s risk
assessment shows that risk is
greatest for CAUTI in specific
patient care units or service
lines, the surveillance program
may be targeted to focus
resources on those high-risk
issues. Section IV pp. 15 to 16
of the Hospital Infection
Control Practices Advisory
Committee guideline lists
evidence-based measures that
are helpful for implementing a
program to monitor compliance.
(Please refer to the guidelines
for these specific measures.)

Greeley Mt. Dismiss Ex. B 83 (emphasis in original).
The defendants dispute that their page is substantially similar to the page from the 2011
CAMH, but even assuming that it is, what the plaintiffs have identified as evidence of substantial
similarity between their 2011 CAMH and the defendants’ publications amounts to one page out
of 742 pages that contains two paragraphs of identical text and one page that contains mainly
paraphrased text. Those allegations fall well short of plausibly alleging substantial similarity to
the plaintiffs’ 2011 CAMH. Two out of 742 pages (.27%) of the 2011 CAMH have been
allegedly infringed. 8 This minimal degree of duplication is not a reproduction of a substantial
portion of the plaintiffs’ work and the complaint, thus, fails to satisfy the plaintiffs’ obligation
under Rule 8 to plausibly allege infringement of their copyright in the 2011 CAMH. See 4-13
Nimmer on Copyright § 13.03(A)(2)(a) n.97-98; see also Green Bullion Fin. Servs., LLC v.
Money4Gold Holdings, Inc., 639 F. Supp. 2d 1356, 1362 (S.D. Fla. 2009) (defendant’s three8

That’s measuring by pages. The percentage is even smaller if one measures by the
number of standards and elements of performance, as the defendants do. See Greeley Mem. in
Supp. 11 (“The referenced page of the Infection Guide contains paraphrases of one (out of 300)
Standard and four (out of 1750) Elements of Performance . . . .”), 13 (“The single referenced
page of the HR Guide contains recitations of two (out of 300) Elements of Performance . . . .”).

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page websites, even if they were similar to the plaintiff’s site, were too insignificant a portion of
defendant’s 43-page website to be substantially similar); Turner v. Century House Publishing
Co., 290 N.Y.S.2d 637, 646 (N.Y. Sup. Ct. 1968) (that one chapter of plaintiff’s book was
paraphrased in defendant’s book was not substantial similarity); Rosemont Enters., Inc. v.
Random House, Inc., 366 F.2d 303, 305-06 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967)
(court expressed “considerable doubt” whether the copied portion was “a material and substantial
portion” of the plaintiff’s work and reversed the grant of preliminary injunction where defendant
copied verbatim approximately 31 lines (about 256 words) and paraphrased approximately eight
lines (about 80 words)—a combined 2.5%—of a total of 13,500 words); cf. Harper & Row,
Publrs. v. Nation Enters., 471 U.S. 539, 548, 565-66 (1985) (that 13% of defendant’s article was
copied verbatim from plaintiff’s article was “in absolute terms . . . an insubstantial portion” but
the qualitative value of the copied material was substantial).
The plaintiffs assert that they are not required to provide an exhaustive list of each
example of infringement at this stage as discovery may uncover additional instances of
infringement. See Resp. to Greeley 9-10. While that is possible, 9 it misses the point. The
plaintiffs need not, in their complaint, catalog every instance of duplication between the
defendants’ work and the 2011 CAMH; rather, they must plead facts sufficient to make their
claim of substantial similarity plausible. Sampling may permit such an inference, if done based
on a methodology that supports an inference that the sample results are representative of the
correlation between the works as a whole. See Nimmer on Copyright § 12.10(B)(3) (“[T]he court
may render its decision based on representative samples of defendant’s episodic work, rather
9

It is unclear what additional information the plaintiffs expect to uncover in discovery;
they have access to the text of their work and to the text of the defendants’ publications. They are
as able to compare the entirety of the works and identify any additional infringing portions now
as they would be after discovery.

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than being required to ‘look at all 150 episodes’ in reaching its determination of substantial
similarity.” (citing Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1132 (C.D. Cal. 2007))).
Merely locating two occasions where there is substantial similarity, however, does not provide a
reliable basis for such an inference.
The claims of copyright infringement based on the 2011 CAMH are dismissed without
prejudice for failure to state a claim. 10
*

*

*

The SAC is dismissed without prejudice. The plaintiffs are granted leave to replead
within 14 days of the entry of this Order. As noted, the claims based on the 2009 CAMH cannot
be cured by repleading in this case but may be the subject of a new suit if the statute of
limitations permits. The parties should consider as well whether such a suit could be
consolidated with this one after filing pursuant to Local Rule 40.4. Absent timely filing of an
amended complaint, the case will be dismissed with prejudice.

Dated: April 13, 2016

John J. Tharp, Jr.
United States District Judge

10

Greeley also argues that the complaint must be dismissed for failure to identify each
and every work that allegedly infringes on the plaintiffs’ publications. See Greeley Mem. in
Supp. 7-8. The plaintiffs are correct that they are not required to identify every infringing
publication at this stage; the question is whether they have plausibly alleged infringement by the
identified publications. For the reasons stated supra, they have not met this requirement. If the
plaintiffs discover additional infringing publications at a later date, they can seek leave to amend
the complaint to add those claims.

15