HENSON SCALES v. WEBB et al
Filing
36
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 03/30/2016. For the reasons set forth herein, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss Amended Complaint and for Judgment on the Pleadings (Doc. 23 ) is DENIED.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MEG HENSON SCALES,
Plaintiff,
v.
CHAUNESTI WEBB and
MANBITES DOG THEATER COMPANY,
Defendants.
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1:15CV192
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Motion to Dismiss Amended
Complaint and for Judgment on the Pleadings filed by Defendant
Chaunesti Webb (“Defendant Webb”). (Doc. 23.)
Plaintiff Meg
Henson Scales (“Plaintiff”) has filed a response, (Doc. 29), and
Defendant has replied. (Doc. 33.)
This matter is now ripe for
resolution, and for the reasons stated herein, Defendant’s
Motion to Dismiss will be denied.
I.
PROCEDURAL HISTORY
Plaintiff filed her initial complaint on March 3, 2015.
(Doc. 1.) Defendant Manbites Dog Theater Company (“Defendant
Manbites Dog”) filed an Answer and Defenses on April 9, 2015,
(Doc. 8), and Defendant Webb, after several Motions for
Extension of Time, filed a Motion to Dismiss and an Answer on
June 1, 2015. (Docs. 10, 11, 13, 14, 15.)
Plaintiff then filed
an Amended Complaint on June 25, 2015. (Doc. 19.)
Defendant
Manbites Dog filed an Answer and Defenses to the Amended
Complaint on July 13, 2015 (Doc. 22), and Defendant Webb filed
an Answer and the instant Motion to Dismiss Amended Complaint
and for Judgment on the Pleadings on the same day. (See Docs.
23, 24.) Defendant Webb’s Briefing is now complete on the
motion. 1
II.
BACKGROUND
Plaintiff is a resident of New York City and author of a
1995 essay titled “Tenderheaded: Or, Rejecting the Legacy of
Being Able to Take It,” (“Tenderheaded”). (Amended Complaint
(“Am. Compl.”) (Doc. 19) ¶¶ 8, 11.)
According to Plaintiff, the
essay uses Plaintiff’s childhood memories and the history of the
Civil Rights movement to criticize what Plaintiff refers to as
“strongblackwoman,” which is a “pain-enduring, self-denying
‘anti-hero’ who is ‘culturally valued in direct proportion to
her personal sacrifice.’” (Id. ¶ 11.)
Plaintiff’s essay was
published in 2001 by Simon & Schuster as the title essay in an
1
On July 16, 2015, Magistrate Judge Joi Elizabeth Peake
entered an order terminating as moot Defendant Webb’s original
Motion to Dismiss as a result of the filing of the Amended
Complaint. (Doc. 27.)
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anthology entitled: “Tenderheaded: A Comb-Bending Collection of
Hair Stories” (“the anthology”). (Id. ¶ 12.) The anthology was
copyrighted on March 23, 2001, and Plaintiff copyrighted her
individual essay on May 2, 2012.
(Id. ¶¶ 14-15.)
Defendant
Webb allegedly obtained and read a copy of Tenderheaded at some
point prior to March of 2012 (Id. ¶ 16.)
Defendant Webb completed a play entitled “I Love My Hair
When It’s Good: & Then Again When It Looks Defiant and
Impressive” (“I Love My Hair”) sometime on or about March 8,
2012, allegedly copying several passages from Tenderheaded
directly into her script. (Id. ¶¶ 17-18.)
Defendant Webb put on a performance run of the play at
Defendant Manbites Dog’s theater between March 8 and March 17,
2012, selling out each night the play was performed. (Am. Compl.
¶¶ 25-26.)
After this run of performances, Defendant Webb
emailed Plaintiff to request permission to use sections of
Tenderheaded, which Plaintiff denied, requesting that Defendant
not use her work.
(Id. ¶¶ 30-32.)
After this exchange, a
revised version of “I Love My Hair” was again performed at
Manbites Dog Theater, between January 17 and February 1, 2014.
(Id. ¶ 36.)
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III. ANALYSIS
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. V. Twombly,
550 U.S. 544, 570 (2007)).
A claim is facially plausible
provided the plaintiff provides enough factual content to enable
the court to reasonably infer that the defendant is liable for
the misconduct alleged.
Id.
The pleading setting forth the
claim must be “liberally construed” in the light most favorable
to the nonmoving party, and allegations made therein are taken
as true.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
However, “the requirement of liberal construction does not mean
that the court can ignore a clear failure in the pleadings to
allege any facts [that] set forth a claim.”
Estate of Williams-
Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp. 2d 636,
646 (M.D.N.C. 2004).
Rule 12(b)(6) protects against meritless litigation by
requiring sufficient factual allegations “to raise a right to
relief above the speculative level” so as to “nudge[] the[]
claims across the line from conceivable to plausible.” Twombly,
500 U.S. at 555, 570; see Iqbal, 556 U.S. at 680. Under Iqbal,
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the court performs a two-step analysis. First, it separates
factual allegations from allegations not entitled to the
assumption of truth (i.e., conclusory allegations, bare
assertions amounting to nothing more than a “formulaic
recitation of the elements”). Iqbal, 556 U.S. at 681. Second, it
determines whether the factual allegations, which are accepted
as true, “plausibly suggest an entitlement to relief.” Id. “At
this stage of the litigation, a plaintiff's well-pleaded
allegations are taken as true and the complaint, including all
reasonable inferences therefrom, are liberally construed in the
plaintiff's favor.” Estate of Williams-Moore, 335 F. Supp. 2d at
646.
The same standard should be applied for motions under
Federal Rule of Civil Procedure 12(c) as for motions pursuant to
Rule 12(b)(6).
Indep. News, Inc. v. City of Charlotte, 568 F.3d
148, 154 (4th Cir. 2009) (citing Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999)).
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A.
Copyright Infringement
Plaintiff alleges a single claim of copyright infringement. 2
Copyright protection extends to “original works of authorship
fixed in any tangible medium of expression.” 17 U.S.C. § 102(a).
A copyright holder has certain exclusive rights to the work,
including the right to reproduce all or any part of the
copyrighted work. 17 U.S.C. § 106. To prove copyright
infringement, a plaintiff must show first, that she owned the
copyright to the work that was allegedly copied, and second,
that the defendant copied protected elements of that work that
were original. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499
U.S. 340, 361 (1991). As Defendant Webb concedes, Plaintiff’s
allegation that she owned a valid copyright to Tenderheaded must
be taken as true at this stage of the proceedings. (See Def.’
Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem.”) (Doc. 25) at
2
The court notes that, although Plaintiff’s complaint at
least suggests infringement by Plaintiff’s Master’s Thesis as
well as both the 2012 and 2014 versions of the play, only a
single count of copyright infringement is alleged. (See Am.
Compl. (Doc. 19).) Defendant Webb responds, and Plaintiff
apparently does not contest, that her Master’s Thesis does not
contain the play at issue, and that the 2014 version of “I Love
My Hair” removed all allegedly copied material. As such, the
court will limit its discussion of infringement to the 2012
version of the play, as there appears to be no disagreement that
neither the Thesis nor the 2014 version of the play infringe.
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4.)
As such, the relevant inquiry is as to whether Defendant
copied protected elements of Tenderheaded.
A plaintiff may prove the second element — that the
protected elements of the plaintiff's work were copied — through
either direct or circumstantial evidence. See, e.g., M. Kramer
Mfg. Co. v. Andrews, 783 F.2d 421, 445 (4th Cir. 1986).
Here,
in contrast to most copyright infringement cases, Defendant Webb
apparently admits that certain verbatim passages from
Plaintiff’s essay appear in the 2012 version of her play “I Love
My Hair.” (See Def.’s Answer to First Am. Compl. (Doc. 24)
¶ 18.)
However, the second step of the inquiry requires not
only a showing that a defendant copied a plaintiff's work, but
that the defendant also copied “protected elements” of the
plaintiff's work. Ale House Mgmt., Inc. v. Raleigh Ale House,
Inc., 205 F.3d 137, 143 (4th Cir. 2000).
In the context of a copyright infringement claim, whether
the copied elements of a work are protected is particularly
important because “[t]he mere fact that a work is copyrighted
does not mean that every element of the work may be protected.”
Feist Publ'ns, 499 U.S. at 348. Rather, copyright protection
extends “only to those components of a work that are original to
the author.” Id.
As such, even if a work is fact based, if an
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author “clothes facts with an original collocation of words, he
or she may be able to claim a copyright in this written
expression. Others may copy the underlying facts from the
publication, but not the precise words used to present them.”
Id.
Defendant contends that because Plaintiff’s essay is
nonfiction, and that the “‘plot elements’ it recounts are no
more than autobiography,” that these elements, as facts, are not
protectable under copyright law. (See Def.’s Mem. (Doc. 25) at
13.) Plaintiff responds that while certain facts from
Plaintiff’s life are incorporated into the work, it is the
manner and style in which they are incorporated and used
throughout the essay that is original and entitled to copyright
protection. (See Pl.’s Resp. in Opp’n to Def.’s Mot. to Dismiss
(“Pl.’s Resp.”)(Doc. 29) at 7.)
Plaintiff is correct that simply because a work is
nonfiction does not mean that it is either non-original, or not
entitled to copyright protection.
See Harper & Row, Publishers,
Inc. v. Nation Enters., 471 U.S. 539, 547 (1985) (acknowledging
a copyright for the memoirs of President Ford, and holding that
“[c]reation of a nonfiction work, even a compilation of pure
fact, entails originality”). As such, Defendant Webb’s
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allegations that Plaintiff’s essay is not entitled to copyright
protection simply by virtue of being nonfiction is legally
incorrect.
Plaintiff here alleges, and Defendant Webb apparently
concedes, that the play “I Love My Hair” contains entire
phrases, taken verbatim, from Plaintiff’s essay, such as “me
between her legs, clasping her knees, facing out, a sotto voice
hugging takes place, nice, if not wonderful,” the phrase
“strongblackwoman,” and the entire last act of the 2012 version
of Defendant Webb’s play. (Am. Compl. (Doc. 19) ¶¶ 18-19.)
Such
expressions are not merely the underlying historical or
autobiographical fact, which Defendant Webb would be free to
use, but rather, Plaintiff’s own unique recounting and
description of events. As stated in Feist Publications, when
Plaintiff, as she has here, “clothes facts with an original
collocation of words,” those words are entitled to protection.
499 U.S. at 348.
As Plaintiff has sufficiently alleged that
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those original words were copied, Plaintiff has alleged enough
at this stage to plausibly allege copyright infringement. 3
B.
Fair Use
Defendant also contends that, even if the court finds that
protected elements of Plaintiff’s copyrighted work were copied,
that her use of those elements was permissible under the
doctrine of Fair Use. (See Def.’s Mem. (Doc. 25) at 14-19.)
3
The court notes that Plaintiff’s complaint requests
statutory damages. (See Am. Compl. (Doc. 19) at 10.) Although
this court will not rule on the issue at this time, it notes
that it does not appear at this point that Plaintiff is entitled
to statutory damages. By statute, such damages are not available
for “any infringement of copyright commenced after first
publication of the work and before the effective date of its
registration.” 17 U.S.C. § 412(2). Here, Plaintiff did not
register for copyright protection until May of 2012, after the
alleged infringement occurred. Plaintiff contends that the
registration of copyright for the anthology, published in 2001,
suffices to trigger statutory damages for Defendant’s
infringement. However, it is Fourth Circuit law that, absent
proof of joint ownership, the authors of collective works are
presumed not to own the copyright in the component parts of a
published collection of works. See Metro. Reg’l Info. Sys.,
Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591, 596 (4th
Cir. 2013). Further, the 2001 copyright for the anthology
specifically notes that it extends only to “new matter” in the
anthology, such as photos, illustrations, and the compilation
itself. (See Am. Compl., Ex. D, 2001 Anthology Copyright (Doc.
19-4).) As such, because Plaintiff’s copyright was not
registered until May of 2012, after the alleged dates of
infringement, she does not appear to qualify for statutory
damages. These issues will have to be fully addressed at a later
stage of these proceedings.
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The Copyright Act provides that “the fair use of a
copyrighted work . . . for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement
of copyright.” 17 U.S.C. § 107.
“A ‘fair use’ defense is by its
nature very fact-specific, because in deciding the issue a court
must delve into issues such as the purpose and character of the
use, the amount of the portion used in relation to the
copyrighted work as a whole, and the effect of the use on the
market for the copyrighted work.” Red Bull GmbH v. RLED, LLC,
515 F. Supp. 2d 641, 648 (M.D.N.C. 2007) (citing Bond v. Blum,
317 F.3d 385, 394 (4th Cir. 2003). Whether a given use of
copyrighted material is “fair” requires a case-by-case analysis
in which the statutory factors are not “treated in isolation”
but are “weighed together, in light of the purposes of
copyright.” Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569,
578 (1994).
As fair use is an affirmative defense to copyright
infringement, the burden is on the defendant to prove fair use.
Id. at 590. Affirmative defenses may be considered at the motion
to dismiss stage only “in the relatively rare circumstances
where facts sufficient to rule on an affirmative defense are
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alleged in the complaint.” Goodman v. Praxair, Inc., 494 F.3d
458, 464 (4th Cir. 2007). The court may consider such a defense
in a motion under Rule 12(b)(6) only when “all facts necessary
to the affirmative defense ‘clearly appear[] on the face of the
complaint.’” Id. (citing Richmond, Fredericksburg & Potomac R.R.
v. Forst, 4 F.3d 244, 250 (4th Cir. 1993).
Here, Defendant has not shown that this affirmative defense
is clearly established on the face of the complaint. In order to
show fair use, Defendant must establish that the use was fair in
light of four factors:
(1)
the purpose and character of the use, including
whether such use is of a commercial nature or is
for nonprofit educational purposes;
(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.
Given fact-intensive nature of the fair use defense, and
the requisite balancing of factors it involves, this court finds
that at this point in the litigation, it is simply premature to
consider whether Defendant Webb’s use of Plaintiff's copyrighted
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work could be considered “fair use” for purposes of a motion to
dismiss under Fed. R. Civ. P. 12(b)(6). 4
As noted above, the facts necessary to establish the
defense for purposes of 12(b)(6) must appear on the face of the
complaint. Goodman, 494 F.3d at 464.
However, unlike a Rule
12(b)(6) motion, on a Rule 12(c) motion the court may consider
the Answer as well.
Rinaldi v. CCX, Inc., No. 3:05-CV-108-RJC,
2008 WL 2622971, at *2 n.3 (W.D.N.C. July 2, 2008.)
The factual
allegations in the Answer are taken as true “only where and to
the extent they have not been denied or do not conflict with the
complaint.”
Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C.
1991). “The test applicable for judgment on the pleadings is
whether or not, when viewed in the light most favorable to the
party against whom the motion is made, genuine issues of
material fact remain or whether the case can be decided as a
matter of law.” Smith v. McDonald, 562 F. Supp. 829, 842
(M.D.N.C. 1983).
“For the purposes of this motion Defendant
cannot rely on allegations of fact contained only in the answer,
4
The court notes, for example, that the Amended Complaint
alleges commercial use by Defendant, as well as the direct
copying of “numerous” passages, weighing against a finding of
fair use, and further supporting a finding that such a defense
cannot be established on the face of the Amended Complaint. (See
Am. Compl. (Doc. 19) at ¶¶ 18-20, 26, 29, 37.)
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including affirmative defenses, which contradict [the]
complaint” because “Plaintiffs were not required to reply to
[the] answer, and all allegations in the answer are deemed
denied.” Jadoff, 140 F.R.D. at 332.
Just as with the 12(b)(6) motion, the court finds that
Defendant’s 12(c) motion is simply premature at this stage.
Defendant’s affirmative defense of fair use clearly contradicts
the facts alleged in the Amended Complaint, and the court cannot
resolve those factual issues on this record for purposes of a
12(c) motion.
Given that factual issues are to be resolved in
favor of Plaintiff, Defendant’s 12(c) motion must necessarily
fail.
Accordingly, the court will not dismiss Plaintiff’s claim
at this stage based upon Defendant’s alleged “fair use” defense
under either Rule 12(b)(6) or 12(c).
IV.
CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that
Defendant’s Motion to Dismiss Amended Complaint and for Judgment
on the Pleadings (Doc. 23) is DENIED.
This the 30th day of March, 2016.
_______________________________________
United States District Judge
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