Gattoni v. Tibi, LLC
Filing
18
OPINION: re: 8 MOTION to Dismiss PURSUANT TO FED. R. CIV. PRO. 12(b)(6) filed by Tibi, LLC. Based upon the conclusions set forth above, the Defendant's motion is denied in part and granted in part. The Complaint's copyright infringe ment claim is dismissed without prejudice. The Plaintiff is granted leave to amend the Complaint within 60 days showing either a valid copyright registration of the Photograph or rejection of her copyright registration application. IT IS SO ORDERED. (Signed by Judge Robert W. Sweet on 5/25/2017) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- -- -------------- - --------------------x
MATILDE GATTONI,
Plaintiff ,
16 Civ. 7527
OPINION
(RWS)
- againstTIBI, LLC,
Defendant .
--------------------------------------x
A P P E A R A N C E S:
Attorneys for Plaintiff
LIEBOWITZ LAW FIRM PLLC
11 Sunrise Plaza , Suite 301
Va ll ey Stream , NY 11580
By : Richard Liebowitz, Esq .
Yekaterina Tsyvkin, Esq.
Attorney for Defendant
LAW OFFICE OF GORDON E.R. TROY, PC
PO Box 1180
Shelburne , VT 05445
By : Gordon E . R. Troy , Esq.
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1
Sweet , D.J .
Defendant Tibi , LLC ("Tibi " or the "Defendant") has
moved to dismiss the complaint of p l aintiff Matilde Gattoni
("Gattoni " or the "Plaintiff " ) pursuant to Rule 12(b) (6) of the
Federal Rules of Civil Procedure. As set forth below, the motion
is denied in part and granted in part.
I .
Prior Proceedings
Gattoni filed her complaint (the " Complaint " ) against
Tibi on September 27 , 2016 , alleging copyright infringement
under Section 501 of the Copyright Act and removal and/or
alteration of copyright management information under Section
1202(b) of the Digital Mil l ennium Copyright Act . The instant
motion was filed on October 27, 2016 , and the motion was marked
fully submitted on December 15 , 2016.
II .
The Facts
The facts as set forth below are drawn from the
Pl aintiff's Comp l aint . They are taken as true for purposes of
the motion to dismiss .
1
Gattoni, a professional photojournalist, is the author
of a photograph of a woman in a long dress walking down an empty
street near a building with a colorful fa9ade in Essaouira,
Morocco (the "Photograph") . Compl. ':lI':lI 5, 7,
9 & Ex. A.
On or
about August 26, 2 016, Gattoni posted the Photograph on her
Instagram page, @matildegattoni. Id. ':lI 8 & Ex. B. The caption to
the Photograph included the phrase "(c) Matilde Gattoni
Photography, 2016, All rights reserved." Id. Ex. B. The
Photograph has a pending United States copyright registration
number of 1-4017865036. Id. ':lI 9 & Ex. C.
Tibi, a clothing corporation with a place of business
at 120 Wooster Street, New York, New York 10012, operates the
Instagram page @Tibi.
Id. ':lI 6. On or about September 20 , 2016 ,
Tibi copied the Photograph, cropped it so that only the colorfu l
fa9ade of the building remained, and posted the image to Tibi's
Instagram page. Id. ':lI 11 & Ex. D. The post was accompanied by
the caption "Palette," an image of a camera, a colon , and a
hyperlinked reference to Gattoni's Instagram page, as shown
below . Id. Ex. D.
matUdegattonl
tlbl Palette.
2
Tibi did not l ice n se t h e Photograph f r om Gattoni for
its I nstagram socia l media page , nor d i d Ti bi acqui re Gattoni ' s
permission or consent to publ i sh the Photograph on its Instagram
page pr i or to doing so . Id.
III.
~
12 .
The Applicable Standards
The Rule 12(b) (6)
standard requires that a comp l a i nt
plead sufficient facts to state a c l aim u pon which relief can be
granted . Ashcro ft v . Iqbal , 556 U. S . 662 ,
Atl . Corp . v. Twombly, 550 U. S. 544 , 570
677 - 78
(2009) ; Bell
(2007) . On a mo tion to
dismiss under Fed. R. Ci v . P 12(b) (6) , all factual a l legations
in th e compla i nt are accepted as true , and al l reasonable
inferences are drawn in the plaintiff ' s favor . Litt l ejohn v .
City of N . Y. , 795 F . 3d 297 , 306 (2d Cir . 2015) ; Mills v. Polar
Molecular Corp ., 1 2 F . 3d 1170 , 1174
(2d Ci r . 1993). However , " a
pla i ntiff ' s obl i gation to prov i de the grounds of h i s entitlement
t o relief requires more than labe l s and conclusions ." Twombly,
550 U. S . at 555 (quotation marks omi tted) . A compla i nt must
contain " s u ffic i ent factua l matter , accepted as tr u e , t o ' state
a c l aim to re l ief that i s plausib l e o n i ts face .' " Iqbal , 556
U. S . at 663
(quoting Twombly , 550 U. S . at 570) .
3
A claim is facially plausible when "the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
(quoting Twombly,
550 U.S. at 556). In
other words, the factual allegations must "possess enough heft
to show that the pleader is entitled to relief." Twombly,
U.S. at 557
550
(internal quotation marks omitted).
Additionally, while "a plaintiff may plead facts
alleged upon information and belief 'where the belief is based
on factual information that makes the inference of culpability
plausible,' such allegations must be 'accompanied by a statement
o f the facts upon which the belief is founded.'" Munoz-Nagel v.
Guess, Inc., No. 12-1312, 2013 WL 1809772, at *3 (S.D.N.Y. Apr.
30, 2013)
(quoting Arista Records, LLC v. Doe 3,
604 F.3d 110,
120 (2d Cir. 2010)) and Prince v. Madison Square Garden, 427 F.
Supp. 2d 372, 384
(S.D.N.Y. 2006); see also Williams v.
Calderoni, No. 11-3020, 2012 WL 691832, *7
(S.D.N.Y. Mar. 1,
2012) . The pleadings, h owever , "must conta in something more than
. a statement of facts that merely creates a suspicion [of]
a legally cognizable right of action." Twombly,
4
550 U.S. at 555
(quoting 5 CHARLES ALAN WRI GHT
PROCEDURE
IV.
§
&
ARTHUR R. MILLER , FEDERAL PRACTICE AND
1216 (3d ed. 2004)) .
The Motion to Dismiss the Claim for Copyright Infringement
is Granted
To state a claim for copyright infringement under the
Copyright Act , 17 U.S.C.
§§
1 01 et seq. , a plaintiff must allege
"(1) which original works are the subject of the copyright
claim;
(2) that the plaintiff owns the copyrights in those
works;
(3) that the copyrights have been registered in
accordance with the statute ; and (4) by what acts during what
time the defendant infringed the copyright ." Palatkevich v.
Choupak , Nos. 12-cv- 1681(CM) , 12-cv-1682
at *6 (S . D. N. Y. Jan. 24, 2014)
(CM) , 2014 WL 1509 236 ,
(internal quotation marks and
citations omitted). Gattoni has met the first two pr ongs of the
test : she has identified the Photograph as the original work
that is the subject of the instant copyright claim, and she has
alleged that she owns the copyright in the Photograph . She has
als o met the fourth pr on g by alleging that Tibi infringed the
copyright by posting a cropped version of the Photograph on its
Instagram page without license or consent. Gattoni has not ,
h owever , met the third prong of the test.
5
The third prong, demonstrating a valid copyright
registration, captures the statutory requirement of Section
411(a) of the Copyright Act, which provides in relevant part
that "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; see also 17 U.S.C.
§
501. In
other words, "the Copyright Act [] requires copyright holders to
register their works before suing for copyright infringement."
559 U.S. 154, 157
Reed Elsevier, Inc. v. Muchnick,
(2010).
Prior to the Supreme Court's decision in Reed
Elsevier, the Second Circuit had held that failure to register a
work was a defect that deprived the federal courts of
jurisdiction over an infringement action. See, e.g., In re
Literary Works in Electronic Databases Copyright Litig., 509
F.3d 116, 121 (2d Cir. 2007), rev'd sub nom. Reed Elsevier, 559
U.S. at 166. "[P]ost-Reed Elsevier, registration is an element
of an infringement claim, rather than a jurisdictional bar."
Cosmetic Ideas, Inc. v. IAC/
InteractiveCorp,
606 F.3d 612, 615
(9th Cir. 2010)); see also K-Beech, Inc. v. Does 1-29, No. CV
11-3331 JTB ETB, 2011 WL 4401933, at *1 (E.D.N.Y. Sept. 19,
2011)
("While failure to register a work does not deprive a
6
federal court of jurisdiction over an action for infringement,
valid registration is an element of an infringement claim .")
The Supreme Court did not answer the question of whether
district courts should dismiss infringement actions when the
relevant work is not registered.
Id. at 171 ("We .
decline
to address whether§ 411(a)'s registration requirement is a
mandatory precondition to suit that .
. district courts may or
should enforce sua sponte by dismissing copyright infringement
claims involving unregistered works.").
Gattoni's Compla int alleges that the Photograph is the
subject of an application for a copyright registration and that
a copyright registration number is "pending." See Compl.
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