United States District Court, E.D. Pennsylvania
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.
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
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.
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
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.
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 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.”
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. 2008)
(quoting Twombly, 550 U.S. at 555). A plaintiff must
plead sufficient factual matter to suggest the elements of
the claim. See Great Western Mining & Mineral Co. v.
Fox Rothschild LLP, 615 F.3d 159, 177 (3d Cir. 2010).
This simply requires the facts to “raise a reasonable
expectation that discovery will reveal evidence of the
necessary element.” Id.
Court's analysis of the motion to dismiss proceeds in
three steps: first, outline the elements of the claim
alleged; second, remove any legal conclusions; and third,
look for well-pled factual allegations and assume they are
true. See Bistrian v. Levi, 696 F.3d 352, 365 (3d
Cir. 2012) (citing Iqbal, 556 U.S. at 679)
viable, a claim of copyright infringement requires pleading
two elements: first, ownership of a valid copyright, and
second, unauthorized use of the original, constituent
elements of the work. See Star Athletica L.L.C. v.
Varsity Brands, Inc., 137 S.Ct. 1002, 1008 (2017);
Marino v. Usher, 22 F.Supp.3d 437, 442 (E.D. Pa.
2014), aff' ...