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Ed Kashi v. McGraw-Hill Global Education Holdings and McGraw-Hill School Education Holdings, LLC

United States District Court, E.D. Pennsylvania

October 12, 2017

ED KASHI, Plaintiff,
v.
MCGRAW-HILL GLOBAL EDUCATION HOLDINGS AND MCGRAW-HILL SCHOOL EDUCATION HOLDINGS, LLC, Defendants.

          ORDER

          WENDY BEETLESTONE, J.

         AND NOW, this 12th day of October, 2017, upon consideration of McGraw-Hill Global Education Holdings and McGraw-Hill School Education Holdings, LLC's Motion to Dismiss (ECF No. 6), Plaintiff Ed Kashi's response thereto (ECF No. 9), and Defendants' reply (ECF No. 13), it is hereby ORDERED that the Motion is DENIED. It is further ORDERED that Kashi is granted leave to amend his Complaint.

         OPINION

         I. Introduction

         Plaintiff Ed Kashi, a professional photographer, brings this suit under the Copyright Act, 17 U.S.C. § 101 et seq., against Defendants McGraw-Hill Global Education Holdings and McGraw-Hill School Education Holdings LLC (collectively, “McGraw-Hill”) for using his photos in their publications without paying him. McGraw-Hill has filed a motion to dismiss or, in the alternative, to strike certain allegations. For the reasons set forth in this opinion, McGraw-Hill's motion is denied in its entirety.

         II. Facts Alleged

         Ed Kashi makes his living by creating and licensing photographs. At some point, he entered into licensing agreements with stock photo companies, granting them a limited right to sublicense his photos to third parties in exchange for a percentage of the fees they negotiated. Sometime after 1995, McGraw-Hill licensed the use of Kashi's photographs. Some of the photographs were registered with the United States Copyright Office. Others had pending copyright registrations. In any event, any license that McGraw-Hill obtained to use the photographs was expressly limited in how it could be used by publication, number of copies, distribution area, image size, language, duration, and the type of media (print or electronic).

         For the purposes of McGraw-Hill's motion to dismiss, the photographs at issue in this matter can be divided into three categories. The first category involves those for which McGraw-Hill was invoiced. Exhibit 1 to the Complaint identifies the photographs by image ID and includes, among other information, the invoice number, and in some cases, the name of the publications in which the photograph was used.

         The second category of documents is contained in a spreadsheet attached as Exhibit 2 to the Complaint. This spreadsheet contains the image ID and the name of the publications in which the photograph appeared, but does not contain any invoice information.[1]

         The third category of documents is set forth in Paragraph 15 of the Complaint, in which Kashi alleges generally that McGraw-Hill, after obtaining access to Kashi's copyrighted photographs, “used them in additional publications without permission, or in excess of permission granted, but Plaintiff has no way of discovering these additional, unauthorized uses.” Complaint ¶ 15. The Complaint goes on to further allege that McGraw-Hill “alone knows the full extent to which it has infringed Plaintiff's copyrights by making unauthorized uses of the Photographs.” Complaint ¶ 16.

         III. Procedural Posture

         McGraw-Hill has filed a motion to dismiss or, in the alternative, to strike immaterial allegations, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f)(2), respectively. Regardless of procedural rubric, McGraw-Hill seeks the same result: dismissal (or striking) of all claims premised on photographs for which plaintiff has failed to plead a valid, in-force copyright registration; claims premised on photographs that plaintiff claims McGraw-Hill has published, but plaintiff has not identified the books in which they were published (entries numbered 48 and 54 of Exhibit 1 to the Complaint); and, claims premised on Paragraph 15 of the Complaint, which, without identifying any specific photograph or any publications in which the unidentified photographs were published, alleges that Kashi's photographs were used “in additional publications without permission.”

         IV. Standard

         At the motion to dismiss stage, all well-pled factual allegations in the complaint are assumed true. See Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011). “To survive a motion to dismiss, 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 556-57 (internal quotation marks omitted)). “Context matters in notice pleading, ” and thus “some complaints will require at least some factual allegations to make out a ‘showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. ...


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