United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. Judge
Honig Realty Inc. sells houses. Plaintiff Michael Boatman is
a professional photographer who photographed several houses
for Honig. Boatman alleges that Honig infringed his
copyrights in the photographs by posting them on a number of
real estate websites and altering his copyright management
information. Honig has moved to dismiss all the counts of the
complaint except for the breach of contract claim. For the
reasons explained below, the motion to dismiss is granted in
part and denied in part.
required when considering a motion to dismiss, the Court
takes all well-pleaded allegations in the complaint as true
and draws all reasonable inferences in the plaintiff's
favor. See Adkins v. VIM Recycling, Inc., 644 F.3d
483, 492-93 (7th Cir. 2011). Plaintiff Michael Boatman is a
professional photographer living in Peoria, Illinois. Am.
Compl. (“Compl.”) ¶ 2. In 2015, Boatman was
hired by defendant Honig Realty Inc. (“Honig”) to
take photographs of nine homes Honig was trying to sell.
Id. at ¶ 6. Boatman took the photographs and
registered each photograph with the U.S. Register of
Copyrights. Id. When Boatman sent Honig the
photographs, they contained embedded information listing his
name, personal information, copyright, and the year.
Id. at ¶ 12.
granted Honig a license which allowed Honig to use the
photographs for the “listing and marketing” of
the homes, with the license expiring when the listing
agreement was terminated (i.e., when the property
sold). Id. at ¶ 9. The license also stated that
“No usage rights are granted until full payment is
made. Nontransferable to any 3rd party for any reason without
prior written consent from the author and copyright owner
Mike Boatman.” Id. On a different document
that Boatman included as a part of his photography proposal,
he stated that the photograph usage rights were
“restricted to the marketing of the listed
property” and that the “[u]sage lease is
nontransferable to 3rd parties.” Compl. ¶ 11.
uploaded the photographs to Zillow, a popular real estate
website, “in order to advertise the Photographed
Properties for sale.” Id. at ¶ 13. Honig
also uploaded some photographs to other real estate websites
to advertise the properties, such as Realtor.com.
Id. at ¶ 20. At least some of the photographs
remained up on Zillow and Realtor.com after the properties
were sold, despite the websites no longer having active
listings for those properties. See Id. at
¶¶ 14, 21. On July 23, 2015, Boatman spoke to two
of Honig's employees about their uploading of the
photographs to Zillow, although it is not clear that he
voiced any complaints regarding the photographs appearing on
Zillow. See Id. at ¶ 15. Honig notes that
pop-up advertisements sometimes appear when visiting the
Realtor.com pages featuring the photographs. See
Compl. ¶ 27. Zillow has also taken at least one
photograph and used it on another segment of the website,
called “Zillow Digs, ” which showcases certain
home features. Id. at ¶ 28.
also complains that Honig “intentionally removed”
the copyright management information (“CMI”) that
he had embedded in the file. Id. at ¶ 51. He
further alleges that Honig added a watermark reading
“PAAR, ” which he believes is an acronym for the
Peoria Area Association of Realtors. Id. at ¶
31. At least one of the photographs in the complaint shows a
PAAR watermark on a photograph in a Realtor.com listing.
Id. at ¶ 20.
twice attempted to contact Honig regarding what he believed
was the improper use of his photographs. In summer 2015,
Boatman called one of Honig's real estate agents and
informed her “of the improper publication of certain of
the Registered Photographs.” Compl. ¶ 33. The
agent allegedly agreed that the use of the photographs
violated the terms of the lease and Boatman's copyright,
but Honig took no action in response. Id. On August
28, 2015, Boatman's lawyer sent a letter to Honig's
president “outlining in detail the infringement and CMI
violations described above, ” but Honig allegedly
“took no action to correct the problem or mitigate the
harm.” Id. at ¶ 34.
filed this lawsuit on August 26, 2016 and amended his
complaint on October 17, 2016. The current complaint brings
four claims: direct copyright infringement, contributory
copyright infringement, violation of the Digital Millennium
Copyright Act (“DMCA”) (17 U.S.C. § 1202),
and breach of contract. Honig has moved to dismiss the first
raises a number of reasons why Boatman has failed to state a
claim under Rule 12(b)(6). As an initial matter, it objects
that Boatman has “pled no facts” that Honig had
knowledge or intent with regard to its alleged contributory
infringement or DMCA violations. See Def.'s Mem.
at 6, 8. Knowledge and intent, however, “may be pleaded
generally (which is to say, in a conclusory fashion).”
Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir.
2009). Boatman has generally alleged that Honig knew its
actions “were substantially certain to result in direct
infringement” and that it “intentionally
removed” the relevant CMI. Compl. at ¶¶ 43,
51. Those allegations are sufficient at this stage. With that
concern addressed, the Court moves on to the substantive
objections to Boatman's claims.
entity that holds a copyright license, such as Honig, can
only commit copyright infringement (rather than breach of
contract) if it exceeds the scope of the license. See
Bergt v. McDougal Littell, 661 F.Supp.2d 916, 921 (N.D.
Ill. 2009) (citing I.A.E., Inc. v. Shaver, 74 F.3d
768, 775 (7th Cir. 1996)). Copyright licenses are to be
construed like any other contracts and interpreted under
state law. Automation by Design, Inc. v. Raybestos Prods.
Co., 463 F.3d 749, 753 (7th Cir. 2006). Honig argues
that its conduct (uploading the photographs to Zillow and
Realtor.com to market the properties) falls squarely within
the license which was explicitly for “listing and
marketing” the properties. See Def.'s Mem.
at 4. Boatman claims that because the lease states it is
“[n]ontransferable” without Boatman's
consent, distributing the photographs to any third party
(even for listing and marketing) was outside the scope of the
lease. See Pl.'s Resp. at 4.
interpretation of an unambiguous contract is a question of
law that can be decided at the motion to dismiss
stage.” Golden v. Wiznitzer, No. 13 C 9003,
2014 WL 1329397, at *1(N.D. Ill. Apr. 2, 2014) (citing De
Lage Landen Fin. Servs., Inc. v. M.D.M. Leasing Corp.,
No.07 C 0045, 2007 WL 4355037, at *2 (N.D. Ill.Dec. 10,
2007)). “A contract is ambiguous only where a
reasonable person could find its terms susceptible to more
than one interpretation.” Automation by Design,
Inc., 463 F.3d at 754. When encountering similar
language regarding a “non-transferable” license,
the Seventh Circuit found the language
“unambiguously” meant that the licensee's
rights could not be transferred. Id. at 755. The
Seventh Circuit rejected the understanding that the
“non-transferable” language meant that the
physical designs could not be ...