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Etrailer Corp. v. Automatic Equipment MFG. Co.

United States District Court, D. Nebraska

April 15, 2019



          John M. Gerrard Chief United States District Judge.

         The plaintiff alleges claims of copyright infringement pursuant to 17 U.S.C. § 501 et seq., and removal of copyright management information pursuant to 17 U.S.C. § 1202. The defendant moves for dismissal of the plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, the Court will grant the defendant's motion.


         To survive a Rule 12(b)(6) motion to dismiss, a complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         A complaint must also contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. 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. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief. Id. at 679.

         In assessing a motion to dismiss, a court must take all the factual allegations in the complaint as true, but is not bound to accept as true a legal conclusion couched as a factual allegation. Twombly, 550 U.S. at 555. The facts alleged must raise a reasonable expectation that discovery will reveal evidence to substantiate the necessary elements of the plaintiff's claim. See Id. at 545. The court must assume the truth of the plaintiff's factual allegations, and a well-pleaded complaint may proceed, even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely. Id. at 556.

         A motion to dismiss under Rule 12(b)(6) tests only the sufficiency of the allegations in the complaint, not the sufficiency of the evidence alleged in support of those allegations. Stamm v. Cty. of Cheyenne, Ne., 326 F.Supp.3d 832, 847 (2018); Harrington v. Hall Cty Bd. of Supervisors, No. 4:15-CV-3052, 2016 WL 1274534, at *4 (D. Neb. Mar. 31, 2016).


         The plaintiff describes itself as the leading online vendor of motor vehicle accessories. Filing 1 at 1. The defendant is a manufacturer of towing supplies, and according to the plaintiff, has supplied such goods to the plaintiff in the past. Filing 1 at 1. To facilitate online purchases of its retail products, the plaintiff created photographs and videos of its products and posted this content on its website. Filing 1 at 2. The plaintiff also obtained copyright registrations for several, but not all, of the photographs and videos. Filing 1 at 3. The plaintiff characterizes these photographs (but not the videos) as its "works" and asserts that it is the "sole legal owner of a multitude of works." Filing 1 at 3. The plaintiff alleges that it invested significant time and money in creating its works, and took steps to ensure that the plaintiff's name and logo were prominently displayed in each such work. Filing 1 at 3.

         The plaintiff alleges that without license, permission or authorization, the defendant copied, modified and displayed the plaintiff's works on the defendant's website, as well as in the defendant's catalogs and perhaps with its packaging. Filing 1 at 4. The plaintiff asserts that the defendant's conduct in this regard in an infringement of its protectable copyright interests. Filing 1 at 6. The plaintiff also alleges that the defendant's infringement is intentional. In 2015, the defendant's representative contacted the plaintiff's representative and asked for permission to use the plaintiff's photographs. The defendant's request was specifically denied. Filing 1 at 5. Notwithstanding the denial, the defendant incorporated the images the plaintiff created of the defendant's products into its website and catalog. Filing 1 at 4.


         1. Copyright Infringement

         To plead a cause of action for copyright infringement, (1) the plaintiff must show that it owns a valid copyright, and (2) that the defendant "copied constituent elements of the work that are original" to the plaintiff. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1262 (10th Cir. 2008). The allegation that the plaintiff obtained a copyright registration for some of its works is sufficient to give rise to the presumption of a valid copyright and a presupposition that the work contains a degree of originality. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991); Meshwerks, 528 F.3d at 1262; 17 U.S.C. § 410(c).

         However, the plaintiff was still required to plead facts showing the defendant copied constituent elements of the work that are original to the plaintiff. In this regard, the plaintiff's allegations are, at best, conclusory and merely parrot the elements of the cause of action for copyright infringement. The plaintiff alleged that its works are original, creative works in which the plaintiff owns a protectable copyright interest. But the complaint does not identify any facts ...

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