Devocean Jewelry LLC v. Associated Newspapers Limited

Filing 30

OPINION AND ORDER re: 17 MOTION to Dismiss Complaint, in Part, filed by Associated Newspapers Limited. For the foregoing reasons, Defendants' Motion to Dismiss is DENIED. This Opinion and Order resolves Docket Entry 17. (As further set forth in this Opinion) (Signed by Judge Kimba M. Wood on 10/20/2016) (kl)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED

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DOC#:~~~--:-~.-­

DEVOCEAN JEWELRY LLC,
Plaintiff,

DATE FILED:

io/ t'1 / 16

16-CV-2150 (KMW)
OPINION AND ORDER

v.

AS SOCIA TED NEWSPAPERS LIMITED,
Defendant.

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KIMBA M. WOOD, District Judge:
Plaintiff Devocean Jewelry, LLC ("Devocean") brings this copyright infringement suit
against Defendant Associated Newspapers Limited ("ANL"). The Complaint alleges that
Defendant posted Plaintiffs copyrighted video, as well as screen grabs from it, online without
Plaintiff's permission, in violation of 17 U.S.C. §§ 106, 501, and 1202. (Compl. [Doc. No. l]).
Defendant ANL has filed a motion to dismiss the Complaint in part, pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Mot. to Dismiss [Doc. No. 17]). For the reasons set forth
below, the Court DENIES Defendant's motion to dismiss.
I.

BACKGROUND
The following facts are taken from Plaintiffs Complaint and are assumed to be true for

the purpose of Defendant's Motion to Dismiss. See Tellabs, Inc. v. Makar Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007); see also Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d
Cir. 1998) ("When considering a motion to dismiss ... for failure to state a cause of action, a
court must accept as true all material factual allegations in the complaint.").
Plaintiff is the copyright owner of a video that depicts a black Labrador Retriever named
Lila diving off a boat into the ocean and catching a lobster on the sea floor (the "Video").

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(Compl. iii! 7, 9 [Doc. No. l]). In November 2015, Plaintiff posted the Video on its website,
www.devotedtotheocean.com. Id. ii 8. The version of the Video that was posted included a
watermark depicting a stylized Devocean logo. Id.

~ii

8, 22.

Later that month, Defendant posted an online article entitled, "Good sea-dog! Meet Lila
the Labrador who catches LOBSTERS for her owner." Id. ~ 11. The article included the full
Video as well as six screen grabs that show individual frames from the Video (the "Screen
Grabs"). Id. ~ 11; Ex. C. The Screen Grabs did not include Devocean's stylized logo, although
they did include a copyright notice that read, "© Devoted to the Ocean." Defendant did not
obtain Plaintiff's permission before posting the Video or the Screen Grabs. Id. ii 13.
In February 2016, Plaintiff obtained a registration from the U.S. Copyright Office for the
Video. Id.

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IO; Ex. A. At the same time, Plaintiff also registered twenty-two separate screen

grabs from the Video, including those that had been posted as part of Defendant's article. Id. ii
10; Ex. B.
Plaintiff filed its Complaint on March 23, 2016, alleging violations of the Copyright Act
and the Digital Millennium Copyright Act ("DMCA"). (Compl.

~ii

14-29). Defendant filed its

motion to dismiss in part on May 18, 2016. (Def.' s Mem. of Law in Supp. Partial Mot. to
Dismiss, ("Mot. to Dismiss") [Doc. No. 18]). The motion is now fully briefed.

II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead facts sufficient "to

state a claim to relief that is plausible on its face." Bell At/. Corp v. Twombly, 550 U.S. 544, 570
(2007). A claim is facially plausible when the supporting factual allegations "allow[] the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Where a plaintiff has failed to "nudge" a claim "across the line

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from conceivable to plausible," a district court must dismiss the complaint. Twombly, 550 U.S. at
570.
The Court must accept as true all well-pleaded factual allegations in a complaint and
"draw[] all inferences in the plaintiffs favor." Allaire Corp. v. Okumus, 433 F.3d 248, 249-50
(2d Cir. 2006) (internal quotations omitted). But a court is "not bound to accept as true a legal
conclusion couched as a factual allegation." Twombly, 550 U.S. at 555.

III.

DISCUSSION
Defendant argues that ( 1) Plaintiffs claims regarding the Screen Grabs should be

dismissed because the Screen Grabs and the Video are derived from a single work, and (2)
Plaintiffs claim under the DMCA should be dismissed because Plaintiff has failed to adequately
allege intent. (Mot. to Dismiss, 1-2). As discussed below, the Court rejects both of these
arguments.
A. The Screen Grabs

First, Defendant contends that Plaintiffs claim of infringement based on the Screen
Grabs should be dismissed because the Screen Grabs are merely component parts of the Video,
and therefore Plaintiff is not entitled to recover statutory damages for each Screen Grab as well
as for the Video. (Mot. to Dismiss, 3-6).
Defendant is correct that a plaintiff may not recover multiple statutory damage awards for
a single work that has been infringed multiple times. Id. at 3 (citing 17 U.S.C. § 504(c)(l)). But
Defendant's argument does not go to the sufficiency of Plaintiffs allegations of infringement
with respect to the Screen Grabs, but rather goes to the calculation of damages, in the event
Plaintiff prevails. See id. Accordingly, this argument is premature when the issue of liability has
not been decided, and when Plaintiff has yet to determine whether it is seeking to recover actual

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example of the allegedly infringing [work] is obviously more than a conclusory allegation."). To
be sure, the presence of copyright information in the screen grabs-even if it differs in
appearance from the information originally included by the Plaintiff-significantly undermines
the strength of Plaintiffs allegations regarding Defendant's intent. However, the Court must
draw all reasonable inferences in Plaintiff's failure, and at this stage, it is at least as reasonable to
infer that the CMI was altered to conceal or facilitate the alleged infringement as for any other
reason. Therefore, the Court concludes that Plaintiff's allegations of intent are sufficiently
detailed to pass the I 2(b)( 6) threshold.
IV.

CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss is DENIED. This Opinion and

Order resolves Docket Entry 17.
SO ORDERED.
DATED:

New York, New York
October 20, 2016

KIMBA M. WOOD
United States District Judge

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