Opinion
No. 01 CV 2821 (RCC)
August 28, 2002
OPINION and ORDER
Plaintiff Cramer Krasselt has filed this action for copyright infringement against Defendants Joseph B. Seagram Sons ("Seagram") and DCODE, seeking injunctive relief and monetary damages. The parties are presently before the Court on Defendants' motion to dismiss the complaint pursuant to Rules 8(a)(2) and 12(b)(6) of Federal Rules of Civil Procedure. For the reasons set forth below, Defendants' motion to dismiss is DENIED.
I. BACKGROUND
The following facts are drawn from the complaint. Seagram, which has a license to use the name "Margaritaville" from Margaritaville Holdings ("the Licensor"), is the manufacturer and distributor of Margaritaville Tequila. Between June and November 2000, Plaintiff submitted a series of proposals ("Proposals") to Seagram and the Licensor, for an advertising campaign to promote Margaritaville Tequila. Plaintiff alleges that the Proposals were wholly original with Plaintiff and copyrightable subject matter.
Sometime in February of 2001 however, two advertisements ("the Advertisements") for Margaritaville Tequila appeared in the 2001 "swimsuit edition" of Sports illustrated. Plaintiff makes the following allegations regarding the Advertisements: that they were substantially similar to some of the Proposals Plaintiff had submitted in 2000; that they were created by DCODE, which is an advertising agency; and that DCODE had access to one or more of the Proposals, from which the Advertisements were unlawfully copied and derived.
Plaintiff received a Certificate of Registration for the Proposals from the United States Copyright Office, effective March 16, 2001. On April 3, 2001, Plaintiff commenced this action for copyright infringement. Thereafter, Defendants moved for dismissal, pursuant to Rules 8(a)(2) and 12(b)(6).
II. DISCUSSION
Rule 8 provides, in pertinent part, that a complaint "shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.Civ.P. 8(a)(2). "The principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Dismissal under Rule 8 is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised. When the court chooses to dismiss, it normally grants leave to file an amended pleading that conforms to the requirements of Rule 8." Id.
The elements of a copyright infringement claim are: "(1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original." Tangorre v. Mako's. Inc., 2002 WL 313156, *2 (S.D.N.Y. Jan. 30, 2002) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
Under the case law of this Circuit, to plead these elements sufficiently for purposes of Rule 8, a complaint must allege: "(1) which specific original works are the subject of the copyright claim; (2) that plaintiff owns the copyrights in those works; (3) that the copyrights have been registered in accordance with the statute; and (4) by what acts during what time the defendant infringed the copyright." Plunket v. Doyle, 2001 WL 175252, *4 (S.D.N.Y. Feb. 22, 2001) (citing Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992) aff'd, 23 F.3d 398 (2d Cir.)).
In the instant motion, only the first and fourth elements are raised as issues. Defendants argue that Plaintiff's complaint should be dismissed because it fails to identify with sufficient specificity: which portions of the Proposals constitute legally protected original works; and Defendants' infringing acts.
As to the first element, the complaint states Plaintiff's belief that the Advertisements were substantially similar to, as well as unlawfully copied and derived from, the Proposals. In support of this allegation, Plaintiff attaches, as exhibits to the complaint, copies of the Proposals and the Advertisements. Nevertheless, Defendants' position appears to be that they have not received fair notice of the claims against them. In support of their argument, Defendants cite to several cases that would appear relevant but are actually inapposite.
In Plunket, 2001 WL 175252 at *4, the plaintiff: attached to the complaint a multi-page schedule of Sir Arthur Conan Doyle's works; provided copyright registration numbers for only nine of the works; and then contended that her copyright claims were not limited to those works. The court therefore held that plaintiff had not provided list of works at issue, but that this technical flaw could be remedied by amendment.
In DiMaggio v. International Sports Ltd., 1998 WL 549690 (S.D.N.Y. Aug. 31, 1998), the plaintiff: alleged that he held copyrights to two photographs titled The Scream and Mike Tyson in Ring; did not attach the photographs as exhibits; and did not attach a certificate of registration as to those photographs. In this context, the court held that the complaint did not specify which original works were the subject of the copyright claim, but that the primary problem was the complaint's failure' to sufficiently allege registration or statutory compliance. Id. at *2.
In a 1942 opinion, Cole v. Allen, 3 F.R.D. 236 (S.D.N.Y. 1942), the court held that the complaint was not sufficiently specific where the plaintiff attached a list of six copyrighted books and alleged only that the defendants had infringed her copyrights by using a character named Charlie Chan and "other literary material, incidents, episodes, similarities and publicity values . . ." Id. at 237.
At this stage of litigation, Plaintiff is not required to specify exactly which individual elements of the Proposals are original in order to put Defendants on fair notice of the claims against them; nor is it necessary that Plaintiff state exactly which of the thirty proposed advertisements that constitute the Proposals were infringed. See Great American Fun Corp. v. Hosung New York Trading Inc., 935 F. Supp. 488, 489 (S.D.N.Y. 1996) (refusing to dismiss complaint as insufficiently specific under Rule 8, even though plaintiff did not allege which of defendant's works infringed plaintiffs copyrights); Franklin Elec. Publishers, Inc. v. Unisonic Products Corp., 763 F. Supp. 1, 3-4 (S.D.N.Y. 1991) (deciding that complaint met Rule 8's requirement for specificity, where complaint alleged that defendant's product contained "portions copied and/or derived from [plaintiffs] copyrighted works."); and Tin Pan Apple v. Miller Brewing Co., 737 F. Supp. 826, 828 (S.D.N.Y. 1990) (denying motion to dismiss where complaint alleged that defendants copied "one or more" of plaintiffs copyrighted works; "[t]he precise meaning of 'one or more' may be explored on discovery . . ."). Defendants cannot really argue that they do not have notice of the claims against them because "the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). The allegations therefore satisfy the rule 8 requirements.
Regarding the fourth element, Plaintiff alleges that DCODE created the allegedly infringing advertisements and that DCODE was provided with access to one or more of the Proposals. Again however, Defendants appear to argue that these allegations do not put them on notice of the allegedly infringing acts. As a court has explained in the context of deciding a motion for summary judgment:
Access means [seeing] or having a reasonable opportunity to [see] the plaintiffs work, in other words having the opportunity to copy. If the infringed work has not been widely disseminated, a party can prove access by showing a particular chain of events or link by which the alleged infringer might have gained access to the work.Cox v. Abrams, 1997 WL 251532, *3 (S.D.N.Y. May 14, 1997) (citations and quotations omitted).
Whether or not DCODE actually had access to the Proposals is a matter that the parties will determine in the course of discovery. However, Plaintiff's allegations more than satisfy the purpose of Rule 8, which is to place Defendants on notice of the claims.
Defendants also move to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6). Defendants' arguments are that Plaintiff has failed to allege facts that establish: ownership of a valid copyright; and either direct or circumstantial evidence of Defendants' copying of the Proposals.
On a motion to dismiss for failure to state a claim, the Court should dismiss the complaint pursuant to Rule 12(b)(6) if it appears beyond doubt that the plaintiffs can prove no set of facts in support of their complaint which would entitle them to relief. Morris v. Local 819, 169 F.3d 782 (2d Cir. 1999) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, "[t]he task of the court in ruling on a Rule 12(b)(6) motion 'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)). Thus, the Court must accept the allegations of the complaint as true, and construe all reasonable inferences in favor of the plaintiffs. See Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d Cir. 1999); Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir. 1998).
Here, Defendants appear to rehash a couple of their Rule 8 arguments, such as Plaintiff's supposed failure to sufficiently allege: exactly which original and protected elements of the Proposals DCODE copied; or that DCODE had access to the Proposals. These are arguments that the Court addressed earlier and the same analysis is applicable here.
In addition, Defendants argue that Plaintiff cannot establish ownership of a valid copyright or substantial similarity as a matter of law. Defendants nonetheless fail to make the necessary showing to justify dismissal of the complaint. The complaint states that Plaintiff has a Certificate of Registration. Moreover, Plaintiff alleges that there is substantial similarity between the Proposals and the Advertisements. Courts have explained that a certificate of registration from the Copyright Office is prima facie proof of ownership and validity. See Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 n. 1 (2d Cir. 1977). Furthermore, courts have held that the issue of substantial similarity should be reserved for the trier of fact or at least the summary judgment stage. See Great American Fun Corp. v. Hosung New York Trading Inc., 935 F. Supp. 488, 489 (S.D.N.Y. 1996). Dismissal is only appropriate if it appears beyond doubt that Plaintiff can prove no set of facts that would establish its claim for relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). Because Defendant has failed to make the necessary showing, dismissal of the complaint is inappropriate.
IV. CONCLUSION
For reasons stated, Defendants' motion to dismiss, pursuant to Rules 8(a)(2) and 12(b)(6), is DENIED.