Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Galvin v. Illinois Republican Party

United States District Court, N.D. Illinois, Eastern Division

September 9, 2015

QUENTON GALVIN AND JACOB MEISTER, Plaintiffs,
v.
ILLINOIS REPUBLICAN PARTY, ILLINOIS HOUSE REPUBLICAN ORGANIZATION, RODERICK DROBINSKI, FRIENDS OF ROD DROBINSKI, JAMESTOWN ASSOCIATES, LLC, AND MAJORITY STRATEGIES, INC., Defendants

Page 1188

[Copyrighted Material Omitted]

Page 1189

          For Quenton Galvin, Jacob Meister, Plaintiffs: Edward B. Mullen, III, Ed Mullen, Esq., Chicago, IL; Jason M Kleinman, David A. Axelrod, David Axelrod & Associates, P.C., Chicago, IL.

         For Illinois Republican Party, Illinois House Republican Organization, Roderick Drobinski, Friends of Rod Drobinski, Majority Strategies, Inc., Defendants: Daliah Saper, LEAD ATTORNEY, Saper Law Offices, Chicago, IL; Chad David Nold, Saper Law Offices, LLC, Chicago, IL.

Page 1190

         [116 U.S.P.Q.2d 1616] MEMORANDUM OPINION AND ORDER

         James B. Zagel, United States District Judge.

         Plaintiffs Quenton Galvin and Jacob Meister (" Plaintiffs" ) filed a twenty-six count complaint against Defendants Illinois Republican Party, Illinois House Republican Organization, Roderick Drobinski, Friends of Rod Drobinski, Jamestown Associates, LLC, and Majority Strategies, Inc. alleging copyright infringement, civil conspiracy, appropriation of image, false light, and defamation. Defendant Jamestown Associates was dismissed by stipulation. The remaining Defendants (" Defendants" ) now move to dismiss Counts I-VII of Plaintiff's complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, Defendants' motion to dismiss is granted.

         I. FACTUAL BACKGROUND

         In early October 2014, Defendants Illinois Republican Party, Illinois House Republican Organization, Roderick Drobinski, Friends of Rod Drobinski, and Majority Strategies, Inc. intentionally authorized, printed, and mailed several thousand 8.5 by 17-inch flyers with two copies of an altered picture of Plaintiff Jacob Meister. The original picture (the " Photograph" ) depicts Plaintiff Meister driving a convertible in a political parade with a poster on the side of the car advertising Sam Yingling, a Democratic member of the Illinois House of Representatives who was running for re-election. The Photograph was taken and copyrighted by Plaintiff Quenton Galvin, a professional photographer who authorized Sam Yingling to post the Photograph on his campaign website.

         Without the permission of the photographer, Galvin, or the subject, Meister, Defendants electronically copied the Photograph from Mr. Yingling's website and altered it to appear as though Mr. Meister was driving away from the Illinois State Capitol with stolen money in the backseat and hundred dollar bills flying out of the open convertible. Defendants believed that the man driving the car was Representative Yingling rather than Plaintiff Meister, a private individual, and intended to criticize Mr. Yingling's fiscal policies.

         Plaintiffs incorporated two slightly different versions of the altered Photograph in a flyer (the " Flyer" ) promoting Roderick Drobinski, a candidate running for State Representative opposite Sam Yingling. Superimposed above or beside the altered photographs are the words: " Mr. Yingling Went to Springfield . . . And Fiscal Responsibility Went Out the Window" and " Career Politician Sam Yingling in the Driver's Seat as Illinois Speeds Towards Higher Taxes, More Wasteful Spending, and More Jobs Lost." Defendants mailed the Flyer to several thousand potential voters leading up to the Illinois State Representative election.

         II. LEGAL STANDARD

         A motion to dismiss under Rule 12(b)(6) does not test the merits of a claim; rather, it tests the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In deciding a 12(b)(6) motion, the court accepts all well-pleaded facts as true, and draws all reasonable inferences in favor of the plaintiff. Id. at 1521. To survive a 12(b)(6) motion, " 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). " A claim has facial plausibility 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. " While legal conclusions can provide the framework of a complaint, they

Page 1191

must be supported by factual allegations." Id. at 679.

         A plaintiff may state a claim even though there is a defense to that claim, and courts should usually refrain from granting Rule 12(b)(6) motions on affirmative defenses. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (citing United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). Still, when all relevant facts are presented, the court may properly dismiss a case before discovery on the basis of an affirmative defense. See id.

         III. DISCUSSION

         A. Copyright Infringement and Civil Conspiracy (Counts I-VII)

         Plaintiffs claim that Defendants infringed Plaintiff Galvin's copyright in violation of the U.S. Copyright Act, 17 U.S.C. § 501 by intentionally authorizing, printing, and mailing several thousand Flyers using two copies of the Photograph without Plaintiff Galvin's permission. Defendants do not dispute that Plaintiffs [116 U.S.P.Q.2d 1617] have adequately pled a claim of copyright infringement, as the complaint establishes the two necessary elements: (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) . Rather, Defendants assert an affirmative defense on the ground that the Photograph was used in the Flyer for the purpose of criticism and commentary and thus constitutes a fair use under 17 U.S.C. § 107. As with any affirmative defense, the Defendants carry the burden of proving that their unauthorized use of the Photograph constitutes a fair use. Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 629 (7th Cir. 2003).

         Under the Copyright Act, the exclusive rights afforded to copyright owners do not extend to " fair uses" of copyrighted works. § 107. Therefore, anyone who makes a fair use of a copyrighted work is not an infringer of the copyright with respect to such use. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 432, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). There is no statutory definition or formula for establishing a fair use, but Congress listed " criticism, comment, [and] news reporting . . ." in the preamble of § 107 as paradigmatic examples of fair uses. Harper & Row Publ'rs, Inc. v. Nation Enterprises, 471 U.S. 539, 592, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). In addition to these illustrations, Congress codified the following four factors, which courts must consider when analyzing an unauthorized use under § 107:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.