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Robert Frerck v. Pearson Education

April 16, 2012

ROBERT FRERCK, PLAINTIFF,
v.
PEARSON EDUCATION, INC. AND JOHN DOE PRINTERS 1-10, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Pearson Education, Inc.'s motion to dismiss [13]. For the reasons set forth below, the Court denies Defendant's motion to dismiss [13].

I. Background

Plaintiff Robert Frerck is a professional photographer who resides in Chicago, Illinois.

Defendant Pearson Education, Inc. ("Pearson") is a textbook publisher, located in Delaware. Between approximately 1992 and 2010, Frerck sold Pearson limited licenses to use a number of Frerck's photographs in Pearson's publications. Frerck alleges that he expressly defined the number of permissible copies, distribution area, language, form of media, and duration for each publication.

Frerck contends that Pearson's use of his photographs regularly exceeded the use permitted by the terms of the licenses, or in some cases, used photographs without first seeking permission. Frerck further contends that he had no way of knowing the extent of Pearson's actual use of his photographs during that time, and thus he continued to grant Pearson additional licenses as requested. Finally, Frerck alleges that at the time that Pearson made the requests, it knew that its actual use would greatly exceed the limited permissions it requested and that Pearson deliberately misrepresented those uses to gain access to Frerck's work and to deprive Frerck of licensing fees.

Frerck asserts two claims against Pearson for copyright infringement in violation of 17 U.S.C. § 501, et seq. First, Frerck alleges that Pearson sought limited licenses to use his images in specific publications, and then exceeded the scope of those licenses. Second, Frerck alleges that Pearson used his images in other publications without seeking or obtaining any license. Pearson has moved to dismiss both claims.

II. Standard on a Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 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 Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Svcs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 569 n. 14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 546. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citations, quotation marks, and brackets omitted). The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

The elements of a claim for copyright infringement are: (1) ownership of a valid copyright, and (2) unauthorized copying of protected elements. See Golden v. Nadler, Pritikin & Mirabelli, 2010 WL 5373876 at *1 (N.D. Ill. Dec. 21, 2010) (citing Mid America Title Co. v. Kirk, 991 F.2d 417, 421-22 (7th Cir. 1993) ("We cannot accept the argument that plaintiffs in [copyright infringement cases] must be held to a particularity requirement akin to Federal Rule of Civil Procedure 9(b) * * * exceptions to the requirements of Rule 8 'must be obtained by the process of amending the Federal Rules and not by judicial interpretation.'"). "Where the plaintiff has granted the defendant a license, to establish the second element, the plaintiff must demonstrate that the license was limited in scope and that the scope of the license has been exceeded." Bergt v. McDougal Littell, 661 F. Supp. 2d 916, 921 (N.D. Ill. 2009).

As to the first element, Pearson does not refute that Frerck has pled sufficient facts to show that he is the owner and exclusive copyright holder of the images in suit, which are identified in Exhibit A to the complaint. Rather, Pearson claims that Frerck's claims extend to "all photographs ever licensed to Pearson" and that he has not provided factual support for his allegations. However, Pearson's position cannot be reconciled with Frerck's complaint. Frerck's complaint alleges that he gave Pearson limited use of certain photographs (all of which are listed in Exhibit A) and that Pearson exceeded the scope of the limited licenses (or, as set forth below, used photographs without any licenses at all). The fact that Frerck alleges infringement of approximately 4,000 photographs does not make his claims any less plausible.

Rather, it just as plausibly suggests that Pearson repeatedly and regularly infringed Frerck's works. The complaint properly alleges infringement of these images by alleging that Pearson used the photographs beyond license limits. Frerck's complaint includes sufficient factual detail and meets the threshold required under notice pleading.

Frerck also alleges that Pearson used his images in other publications without seeking or obtaining any license. As to Pearson's allegedly unlicensed uses in unknown publications, Frerck alleges, "[u]pon information and belief, Pearson used the Photographs*fn1 without any permission in additional publications. Because Pearson alone knows these wholly unauthorized uses, Frerck cannot further identify them without discovery. Pearson has created, or easily could create, a list of its wholly unlicensed uses of Frerck's Photographs." Compl. at ΒΆ 13. The complaint also alleges that Pearson's practice of infringing copyrights "deprived Plaintiff ...

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