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Flava Works, Inc v. andrew Clavio

June 27, 2012


The opinion of the court was delivered by: Judge Edmond E. Chang


Plaintiff Flava Works, Inc. filed this case against Defendant Andrew Clavio, alleging several forms of copyright infringement pursuant to the Copyright Act, 17 U.S.C. § 101 et seq. R. 13 ¶ 1.*fn1 Clavio has moved to dismiss, arguing that the complaint fails to state any claim. Fed. R. Civ. P. 12(b)(6). R. 59. For the reasons explained below, the Court grants the motion to dismiss, but without prejudice to Flava Works proposing a new complaint within 14 days.


The facts are taken as true from Flava Works' complaint. Flava Works produces adult entertainment products (in other words, pornography), including DVDs, streaming video, magazines, photographs, and Internet website content, and distributes the material through its own video websites as well as through various distributors and licensees. R. 13 ¶¶ 9-10. Flava Works alleges that Clavio violated the terms of Clavio's paid membership with Flava Works' websites by downloading, posting, and distributing copyrighted Flava Works' videos to other websites, including those with peer-to-peer sharing and "torrents" technology. Id. ¶ 15. As a result of Clavio's conduct, Flava Works alleges, third parties were able to download the copyrighted videos. Id. ¶ 16. Notably, Flava Works does not identify what works were improperly shared or the method of how they were shared.

Flava Works has brought claims against Clavio for direct, contributory, vicarious, and induced copyright infringement. R. 13. Clavio moves to dismiss Flava Works' complaint for failure to state a claim.


"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). These allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. And the allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678-79.


Clavio argues that Flava Works' second amended complaint does not plead facts sufficient to satisfy the elements of direct, contributory, vicarious, or induced copyright infringement, and does not meet the standards of Iqbal and Twombly. R. 59 at 1-2. Specifically, Clavio contends that each infringement claim must be dismissed because no specific copyrighted work is identified to have been infringed. As the following discussion shows, he is correct.


To state a claim for direct copyright infringement, a plaintiff must allege facts setting forth (1) ownership of a valid copyright in a work and (2) the copying of elements of the work that are original. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). A contributory copyright infringement occurs when the defendant "with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another." In re Aimster Copyright Litig., 252 F.Supp.2d 634, 654 (N.D. Ill. 2002), aff'd, 334 F.3d 643 (7th Cir. 2003); see also Gershwin Publ'g Corp. v. Columbia Artists Mgmt., 443 F.2d 1159, 1162 (2d Cir. 1971). Thus, to state a claim for contributory copyright infringement, a plaintiff must plead, "(1) direct infringement by a primary infringer, (2) the defendant's knowledge of the infringement, and (3) the defendant's material contribution to the infringement." Monotype Imaging, Inc. v. Bitstream, Inc., 376 F.Supp.2d 877, 883 (N.D. Ill. 2005). To state a claim for vicarious copyright infringement, a plaintiff must allege that the defendant: (1) at all material times possessed the right and ability to supervise the infringing activity, and (2) has a direct financial interest in the infringer's activity. In re Aimster, 252 F.Supp.2d at 654; Gershwin, 443 F.2d at 1162; Perfect 10, Inc. v. Visa Int'l Serv. Ass'n, 494 F.3d 788, 802 (9th Cir. 2007). Under the theory of inducement of copyright infringement, "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919 (2005).

Implicit in the elements of all of these claims is identification of an allegedly-infringed "work." Direct infringement requires copyright in and infringement of a work. Similarly, the other three derivative infringement claims are all premised on someone else's infringement of a work; thus, they too fail without identification of a copyrighted work. Iqbal and Twombly require that "the plaintiff plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663. Here, the second amended complaint does not sufficiently do that. Instead, Flava Works merely alleges labels and conclusions, and does not include operative facts,*fn2 such as identifying the actual work that is being infringed and the means of its copying and/or distribution. The mere allegation that "Defendants downloaded copyrighted videos of Flava Works . . . and posted and distributed the aforesaid videos on other websites," R. 13 ¶ 15, does not provide adequate notice to Clavio.

Although the complaint alleges that videos were posted and distributed on other websites, id., these broad and conclusory allegations do not point to a specific copyrighted work that was infringed, and are not enough to put Clavio on notice. See e.g., Nat'l Bus. Dev. Servs., Inc. v. Am. Credit Educ. & Consulting, Inc., 299 F. App'x 509, 511-12 (6th Cir. 2008) (granting a motion to dismiss because the complaint failed to identify the work that was infringed). Flava Works argues that this is a relatively simple case, unlike Iqbal and Twombly, and thus Flava Works should not have to make specific factual allegations. R. 60 at 2-3. But the relative simplicity of this case actually undermines Flava Works. If this is in fact a "run of the mill" case, id. at 2, then Flava Works should have no trouble amending its complaint to include some operative facts sketching out the infringed work and the infringing act.

Because the current complaint fails to allege the necessary operative facts, the motion to dismiss is granted on all counts. For now, the case is dismissed without prejudice, because the Court will give Flava Works 14 days to file a motion to amend the complaint with a proposed third amended complaint. If Flava Works does not file a motion to amend the complaint, then the dismissal will convert into a dismissal with prejudice without ...

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