United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE THOMAS M. DURKIN, UNITED STATES DISTRICT JUDGE
Seide is a photographer who licenses use of his copyrighted
photographs through the company Defined Space (Seide and
Defined Space together are “Plaintiffs”).
Plaintiffs licensed Level-(1) Global Solutions, Inc., to use
certain of Seide’s photographs on Level-(1)’s
website. Plaintiffs allege that Level-(1) and its internet
service providers-Steadfast Networks, LLC, and Nozone,
Inc.-violated various provisions of federal copyright law
with respect to those photographs. Level-(1) has moved to
dismiss some of the claims against it for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
R. 36. Steadfast has moved to dismiss the claims against it
for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(c). R. 26. And Nozone has moved to be
dropped as a party to this case pursuant to Federal Rule of
Civil Procedure 21. R. 29. For the following reasons, all
three motions are denied.
12(b)(6) motion challenges the sufficiency of the
complaint. See, e.g., Hallinan v. Fraternal Order of
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.
2009). A complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim
and the basis for it. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). This standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). While “detailed factual allegations”
are not required, “labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. The
complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570).
“‘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.’” Mann v.
Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting
Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party.
Mann, 707 F.3d at 877.
Rule of Civil Procedure 12(c) permits a party to move for
judgment after the parties have filed the complaint and
answer. Buchanan-Moore v. County of Milwaukee, 570
F.3d 824, 827 (7th Cir. 2009). A Rule 12(c) motion is subject
to the same standard as a Rule 12(b)(6) motion. See
Lodholtz v. York Risk Servs. Group, Inc., 778
F.3d 635, 639 (7th Cir. 2015). Rule 12(c) is “the
proper heading” for a motion asserting an affirmative
defense because “an affirmative defense is external to
the complaint.” Yassan v. J.P. Morgan Chase &
Co., 708 F.3d 963, 975-76 (7th Cir. 2013). For purposes
of Rule 12(c), the pleadings include not just the complaint
but the answer and “a copy of a written instrument that
is an exhibit to a pleading.” Fed.R.Civ.P. 10(c). Such
written instruments include affidavits, letters, contracts,
and loan documents. See N. Ind. Gun & Outdoor Shows,
Inc. v. City of South Bend, 163 F.3d 449, 452-53 (7th
March 2010, Plaintiffs licensed Level-(1) to use several
photographs as “flash components” on its website
for three months. R. 11 ¶ 22. The parties do not explain
what “flash components” are, but based on the
Court’s review of Level-(1)’s website
(www.level-1.com), the Court understands
“flash component” to refer to a slideshow of
photographs. Plaintiffs delivered the photographs to
Level-(1) on a CD. Id. ¶ 23. Embedded on each
of the image files was information about the
photograph’s title, author, creation date, copyright,
“Level-(1) used and displayed the [photographs] beyond
use as flash components under the terms of the Level-(1)
License, including without limitation creating unauthorized
derivative works of the [photographs], impermissibly altering
the [photographs], removing the copyright management
information presented with and embedded in the [photographs],
and publishing the [photographs] without regard to the
copyright management information presented with and embedded
in the [photographs].” Id. ¶ 25. More
specifically, Plaintiffs allege that Level-(1) failed to
accompany each of the photographs with the copyright notice,
“© David B. Seide/DefinedSpace.com.”
Id. ¶ 26. Plaintiffs, however, do not explain
how Level-(1) allegedly created “unauthorized
derivative works” or “alter[ed]” the
attempted to contact Level-(1) about the license breach and
the possibility of expanding the scope, and extending the
term, of the license. Id. ¶ 29. Not until
January 2011 were the parties able to reach agreement on a
new license with a term of June 22, 2010 through December 31,
2011. Id. ¶ 30. Since the agreement post-dated
its term, the agreement was apparently intended to serve as a
settlement of Plaintiffs’ claims regarding
Level-(1)’s use of the photographs. Level-(1), however,
failed to pay the fee required by the agreement. Id.
contacted Level-(1) about its breach of the license again on
June 6, 2011. Id. ¶ 32. Level-(1) again orally
agreed to a new license agreement, but again failed to pay.
Id. ¶ 34. Plaintiffs allege that they
“have diligently and repeatedly contacted Level-(1) . .
. to discuss the matter, ” id. ¶ 33, but
Plaintiffs do not specifically allege any facts about the
ensuing four years.
as of June 23, 2015, Level-(1) was still displaying
Plaintiffs’ photographs on its website, because on that
date Plaintiffs sent a copyright infringement notice to NTT
America, Inc., which at that time was Level-(1)’s
internet service provider. Id. ¶¶ 35, 37.
This notice was also forwarded to a company called Orbit
(also a defendant in this case, who has not made a motion to
dismiss), which designed and managed Level-(1)’s
website. Id. ¶¶ 36, 39. As part of this
notice, Plaintiffs again offered to enter into a new license
agreement. Id. ¶ 40. Level-(1) and Orbit
responded to the notice by rejecting the new license and
removing the photographs from Level-(1)’s website.
Id. ¶ 41.
on February 29, 2016, Plaintiffs discovered that the
photographs had reappeared on Level-(1)’s website.
Id. ¶ 42. Steadfast was Level-(1)’s new
internet service provider, and Plaintiffs allege that
Steadfast is a division of Nozone. Id. ¶ 15.
Plaintiffs sent a copyright infringement notice to Steadfast
and Nozone on March 2, 2016. Id. ¶ 46.
Steadfast’s answer alleges that the notice stated the
following in relevant part:
This letter is official notification under the Digital
Millennium Copyright Act, and we seek the removal of the
aforementioned infringing material from your servers. We
further request that you immediately notify the infringer of
this notice and inform them of their duty to remove the
infringing material immediately, and notify them to cease any
further posting of infringing material to your server in the
R. 13 at 15. Steadfast alleges that it forwarded
Plaintiffs’ letter to Level-(1) on March 2, 2016 (the
email is attached as an exhibit to Steadfast’s answer),
id., and informed Level-(1) that Steadfast’s
policy was that it would act to remove the photographs if
Level-(1) did not do so within five days. Id. at 16.
Steadfast also alleges that it received confirmation on March
10, 2016, that the photogrpahs had been removed from
Level-(1)’s website, and attaches to its answer a copy
of the notice. Id. at 17. Plaintiffs, however,
allege that Defendants “failed to act expeditiously to
remove, or disable access to, ” the photographs. R. 11
alleges in its answer that it has nothing to do with this
case because it assigned its assets and liabilities to
Steadfast. See R. 20. The assignment agreement is
attached to Nozone’s answer. See R. 20-1. In
its brief, ...