ELLIOT McGUCKEN, Plaintiff, -v.- NEWSWEEK LLC, Defendant.
19 Civ. 9617 (KPF)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
June 1, 2020
KATHERINE POLK FAILLA, District Judge
KATHERINE POLK FAILLA, District Judge:
Plaintiff Elliot McGucken is a photographer who focuses on landscapes and seascapes. On March 13, 2019, Plaintiff posted on his Instagram account a photograph of an ephemeral lake (the “Photograph“) that had appeared in Death Valley, California. The following day, Defendant Newsweek published an article about the ephemeral lake (the “Article“), embedding Plaintiff‘s Instagram post of the lake as part of the Article. Plaintiff brought this action for copyright infringement, alleging that Defendant reproduced and displayed the Photograph on its website without his consent. Defendant moves to dismiss the action for failure to state a claim, arguing, inter alia, that it either had a valid sublicense to use the Photograph as a result of Plaintiff‘s public post on Instagram, or that its publication of the Photograph constituted fair use. For the reasons set forth in the remainder of this Opinion, Defendant‘s motion is granted in part and denied in part.
A. Factual Background
1. Plaintiff‘s Allegations
Plaintiff is an individual residing in Los Angeles, California, while Defendant is a limited liability company located in New York, New York. (Am. Compl. ¶¶ 4-5). Plaintiff operates a public Instagram account on which he posts photographs he has taken of landscapes and seascapes. (See Wolff Decl., Ex. A). On March 13, 2019, Plaintiff posted the Photograph, depicting a large lake in Death Valley National Park, to his Instagram account. (See id., Ex. B).
On March 14, 2019, Defendant published the Article, titled “Huge Lake Appears in Death Valley, One of the Hottest, Driest Places on Earth,” on its website. (See id., Ex. C). The Article noted that Plaintiff had captured photographs of the ephemeral lake and provided some quotes from Plaintiff about his observation of the lake. (Id.). Most relevantly to this action, the Article incorporated Plaintiff‘s Instagram post of the Photograph, through a process known as embedding. (See id.; Wolff Decl., Ex. I). As ably explained by the Honorable Kimba Wood,
Embedding allows a website coder to incorporate content, such as an image, that is located on a third-party‘s server, into the coder‘s website. When an individual visits a website that includes an “embed code,” the user‘s internet browser is directed to retrieve the embedded content from the third-party server and display it on the website. As a result of this process, the user sees the embedded content on the website, even though the content is actually hosted on a third-party‘s server, rather than on the server that hosts the website.
Sinclair v. Ziff Davis, LLC, No. 18 Civ. 790 (KMW), 2020 WL 1847841, at *1 (S.D.N.Y. Apr. 13, 2020) (internal citations omitted). At no point did Plaintiff give his consent to Defendant‘s use of the Photograph in the Article, nor did Defendant ever compensate Plaintiff for its use of the Photograph. (Am. Compl. ¶ 10).
On April 1, 2019, Plaintiff registered the Photograph with the United States Copyright Office, with the registration number of VA 2-145-698. (Am. Compl. ¶ 9; id., Ex. B). Two days later, on April 3, 2019, Plaintiff sent a cease and desist letter to Defendant, providing notice of the putative infringement and requesting that Defendant remove the Photograph from the Article. (Id. at ¶ 11). However, Newsweek had not removed the Photograph or taken down the Article as of October 13, 2019. (Id.).
2. Instagram‘s Terms of Use2
Given Defendant‘s argument that it held a valid sublicense to the Photograph due to
[W]hen you share, post, or upload content that is covered by intellectual property rights ..., you hereby grant to [Instagram] a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings).
(Id.).
Instagram‘s Privacy Policy, which “applies to all visitors, users, and others who access the Service,” provides that “other Users may search for, see, use, or share any of your User Content that you make publicly available through [Instagram], consistent with the terms and conditions of this Privacy Policy and our Terms of Use.” (Wolff Decl., Ex. F at 2). In addition, “[s]ubject to your profile and privacy settings, any User Content that you make public is searchable by other Users and subject to use under our Instagram API.” (Id. at 4).3 The Privacy Policy notes that once a user has “shared User Content or made it public, that User Content may be re-shared by others.” (Id.).
Finally, Instagram‘s Platform Policy governs the use of the API. (See Wolff Decl., Ex. G at 2). The Platform Policy states that the Platform is provided “to help broadcasters and publishers discover content, get digital rights to media, and share media using web embeds.” (Id.). However, the Platform Policy instructs users to “[c]omply with any requirements or restrictions imposed of usage of Instagram photos and videos ... by their respective owners,” and also prohibits users from “provid[ing] or promot[ing] content that violates any rights of any person, including but not limited to intellectual property rights.” (Id. at 2-3). The Platform Policy provides that the Platform is licensed to users, but “User Content is owned by users and not by Instagram.” (Id. at 4).
B. Procedural Background
Plaintiff initiated this action on October 17, 2019, with the filing of a complaint against Defendant and other unidentified individuals. (Dkt. #1). On November 13, 2019, the Court scheduled an initial pretrial conference for February 20, 2020. (Dkt. #8). On December 6, 2019, Defendant informed the Court of its intention to file a motion to dismiss. (Dkt. #13). Plaintiff responded to Defendant‘s pre-motion
On December 12, 2019, the Court ordered the parties to appear on January 7, 2020, for a pre-motion conference, and adjourned the initial pretrial conference sine die. (Dkt. #15). The parties appeared for the scheduled pre-motion conference on January 7, 2020, at which time the Court granted Plaintiff leave to amend his complaint and scheduled briefing for Defendant‘s contemplated motion to dismiss. (Minute Entry for January 7, 2020).
On January 24, 2020, Plaintiff filed the Amended Complaint. (Dkt. #17). On February 28, 2020, Defendant filed its motion to dismiss and accompanying memorandum of law and declaration. (Dkt. #20-22). Plaintiff filed its opposing memorandum, accompanied by a declaration, on April 13, 2020. (Dkt. #26-27). On April 20, 2020, Plaintiff requested leave to file a supplemental opposition brief in light of Judge Kimba Wood‘s decision in Sinclair, ostensibly with Defendant‘s consent. (Dkt. #28). The Court granted Plaintiff‘s request on April 21, 2020 (Dkt. #29), only to be informed the same day by Defendant that Plaintiff had allegedly misrepresented his intentions regarding the supplemental brief to Defendant (Dkt. #30). In response, the Court ruled that it would only consider those portions of the supplemental brief that directly addressed Judge Wood‘s decision in Sinclair. (Dkt. #31). On May 4, 2020, Defendant filed its reply brief. (Dkt. #34).
DISCUSSION
A. Motions to Dismiss under Fed. R. Civ. P. 12(b)(6)
When considering a motion to dismiss under
That said, a court is not bound to accept “conclusory allegations or legal conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“[A]lthough a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678)). Moreover, “[w]here 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.‘” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
In its motion to dismiss, Defendant does not contest that Plaintiff has alleged a viable direct claim of copyright infringement. Instead, Defendant‘s motion primarily rests on two independent defenses: (i) Plaintiff‘s public posting of the Photograph on Instagram granted Newsweek a sublicense to use the Photograph via Instagram‘s embedding feature (Def. Br. 12-13), and (ii) Defendant‘s use of the Photograph constituted fair use as a matter of law (id. at 14). The Court addresses each defense in turn.
1. The Court Cannot Find at This Stage That Defendant Acted Pursuant to a Valid Sublicense
Defendant‘s first defense is both straightforward and relatively novel. Defendant argues that, per Instagram‘s various terms and policies, when Plaintiff chose to post the Photograph publicly on Instagram, he granted Instagram a sublicensable license to the Photograph. (Def. Br. 13). Newsweek, in turn, embedded the Photograph in the Article using Instagram‘s API, and in doing so exercised the sublicense that had previously been granted to Instagram. (Def. Reply 4).
In examining Defendant‘s argument, this Court does not paint on a blank canvas. Indeed, Judge Kimba Wood examined the exact same question less than two months ago — whether a web embed of a public post on Instagram can give rise to a claim of copyright infringement. See generally Sinclair, 2020 WL 1847841. In Sinclair, Mashable — a media website — published an article in which it embedded a photograph that Sinclair had previously uploaded to and posted publicly on Instagram. See id. at *1. Mashable argued, and Judge Wood held, that pursuant to Instagram‘s various terms and policies, Sinclair had “granted Instagram the right to sublicense” the photograph at issue, and that “because Plaintiff uploaded the Photograph to Instagram and designated it as ‘public,’ she agreed to allow Mashable, as Instagram‘s sublicensee, to embed the Photograph in its website.” Id. at *2-3.
The Court finds Judge Wood‘s decision to be well-reasoned and sees little cause to disagree with that court‘s reading of Instagram‘s Terms of Use and other policies. Indeed, insofar as Plaintiff contends that Instagram lacks the right to sublicense his publicly posted photographs to other users, the Court flatly rejects that argument. The Terms of Use unequivocally grant Instagram a license to sublicense Plaintiff‘s publicly posted content (see Wolff Decl., Ex. E at 4), and the Privacy Policy clearly states that “other Users may search for, see, use, or share any of your User Content that you make publicly available through” Instagram (id., Ex. F at 2).
Nevertheless, the Court cannot dismiss Plaintiff‘s claims based on this licensing theory at this stage in the litigation. As Plaintiff notes in his supplemental opposition brief, there is no evidence before the Court of a sublicense between Instagram and Defendant. (Pl. Supp. Opp. 7-9). Although Instagram‘s various terms and policies clearly foresee the possibility of entities such as Defendant using web embeds to share other users’ content (see Wolff Decl., Ex. G at 2 (noting that Instagram‘s Platform exists in part “to help broadcasters and publishers discover content, get digital rights to media, and share media using web embeds“)), none of them expressly grants a sublicense to those who embed publicly posted content. Nor can the Court find, on the pleadings, evidence of a possible implied sublicense. See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 317 (S.D.N.Y. 2000) (noting
While the Court acknowledges that it may be possible to read Instagram‘s various terms and policies to grant a sublicense to embedders, the Court‘s role on a Rule 12(b)(6) motion is to “draw all reasonable inferences in Plaintiff‘s favor.” Faber, 648 F.3d at 104. Given the limited review permitted at this stage, the Court cannot find that Defendant acted pursuant to a sublicense from Instagram. Accordingly, Defendant‘s motion to dismiss on this ground is denied.
2. Defendant‘s Embedding of the Photograph Did Not Constitute Fair Use as a Matter of Law
As a second, independent reason for dismissal, Defendant argues that its actions constituted fair use. (Def. Br. 14-15). The Copyright Act, under which Plaintiff brings this suit, is intended “[t]o promote the Progress of Science and useful Arts,
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
“Fair use is an affirmative defense, and therefore Defendant bears the burden of showing that a given use is fair.” Yang v. Mic Network, Inc., 405 F. Supp. 3d 537, 542 (S.D.N.Y. 2019) (quoting Authors Guild v. Google, Inc., 804 F.3d 202, 213 (2d Cir. 2015)). “Courts have granted motions to dismiss infringement claims based on a defendant‘s fair use defense when ‘discovery would not provide any additional relevant information’ and ‘[a]ll that is necessary for the court to make a determination as to fair use are the two [works] at issue.‘” May v. Sony Music Entm‘t, 399 F. Supp. 3d 169, 188 (S.D.N.Y. 2019) (quoting Arrow Prods., Ltd. v. Weinstein Co., 44 F. Supp. 3d 359, 368 (S.D.N.Y. 2014)). However, as this Court has previously observed, “there is a dearth of cases granting such a motion.” BWP Media USA, Inc. v. Gossip Cop Media, LLC, 87 F. Supp. 3d 499, 505 (S.D.N.Y. 2015).
a. The Purpose and Character of the Use Factor Favors Plaintiff
The first factor in the fair use inquiry, which has been described as “[t]he heart of the fair use inquiry,” Cariou, 714 F.3d at 705 (alterations in original) (internal quotation marks omitted) (quoting Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. 2006)), asks in part whether the new
[i]n the context of news reporting and analogous activities, ... the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work without alteration. Courts often find such uses transformative by emphasizing the altered purpose or context of the work, as evidenced by surrounding commentary or criticism.
Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 84 (2d Cir. 2014). Yet the Second Circuit has specifically rejected the contention that commentary is necessary to the fair use defense, holding that “[t]he law imposes no requirement that a work comment on the original or its author in order to be considered transformative.” Cariou, 714 F.3d at 706. “Instead, ... to qualify as a fair use, a new work generally must alter the original with ‘new expression, meaning, or message.‘” Id. (quoting Campbell, 510 U.S. at 579). In general, “the more transformative the new work, the less will be the significance of other factors ... that may weigh against a finding of fair use.” Barcroft Media, Ltd. v. Coed Media Grp., LLC, 297 F. Supp. 3d 339, 351 (S.D.N.Y. 2017) (quoting Campbell, 510 U.S. at 579).
The commercial nature of the secondary use is also relevant; “[t]he greater the private economic rewards reaped by the secondary user (to the exclusion of broader public benefits), the more likely the first factor will favor the copyright holder and the less likely the use will be considered fair.” Swatch, 756 F.3d at 83 (alteration in original) (internal quotation marks omitted) (quoting Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 922 (2d Cir. 1994)); accord Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985) (“The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.“). On the other hand, “purposes such as criticism, comment, [and] news reporting” are set forth in the Copyright Act as prototypical examples of fair use,
Finally, courts considering the first statutory factor are directed to consider whether a defendant acted in bad faith in its use of the copyrighted material. See NXIVM Corp. v. Ross Inst., 364 F.3d 471, 478 (2d Cir. 2004). However, “while the good or bad faith of a defendant ... should be considered, it generally contributes little to fair use analysis.” Ferdman v. CBS Interactive, Inc., 342 F. Supp. 3d 515, 531 (S.D.N.Y. 2018) (quoting NXIVM Corp., 364 F.3d at 479 n.2); see also Yang, 405 F. Supp. 3d at 546 (“[T]he Second Circuit has cautioned that bad faith is not ‘itself conclusive of the fair use question, or even of the first factor.‘” (quoting NXIVM Corp., 364 F.3d at 479)).
Comparing the Photograph with its use in the Article, as the Court must do on a motion to dismiss, the Court cannot find as a matter of law that Defendant‘s use of the Photograph was transformative. Sister courts have noted that the use of a copyrighted photograph in a news article can properly be deemed transformative where the photograph itself is the subject of the story. See, e.g., Ferdman, 342 F. Supp. 3d at 534 (finding that use of a photograph in an article was transformative because the central subject of the article was the existence of, and commentary on, the photograph); Barcroft Media, 297 F. Supp. 3d at 352 (noting that “a news report about video that has gone viral on the internet might fairly display a screenshot or clip from that video to illustrate what all the fuss is about“). But that is not the case here. Plaintiff posted the Photograph as an illustration of a phenomenon he observed, and Defendant similarly used the Photograph primarily as an illustrative aid depicting the subject of the Article. See Ferdman, 342 F. Supp. 3d at 534 (quoting Barcroft Media, 297 F. Supp. 3d at 352). And while it is true that the Article incorporates quotes from Plaintiff about the taking of the Photograph, the mere addition of some token commentary is not enough to transform the use of a photograph when that photograph is not itself the focus of the article.
Defendant attempts to bolster its characterization of its use of the Photograph as transformative by relying on Nunez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000). (Def. Br. 17). In Nunez, a professional photographer took several photographs of Miss Puerto Rico Universe 1997, at least one of which provoked some controversy due to its risqué nature. See 235 F.3d at 20. Three of the photographs were subsequently published in the defendant‘s newspaper, without the plaintiffs’ permission, as part of articles discussing the controversy around the photographs. See id. The First Circuit, in finding that the defendant‘s use was transformative, explained that
[W]hat [was] important ... [was] that plaintiffs’ photographs were originally intended to appear in modeling portfolios, not in the newspaper ... . Thus, by using the photographs in conjunction with editorial commentary, El Vocero ... used the works for “a further purpose,” by giving them a new “meaning, or message.”
Id. at 23.
In the instant action, Defendant claims that its use was similarly transformative because it took a photograph that was intended to be “fine art landscape photography” and transformed it into news or commentary. (Def. Br. 18). But this draws too fine a distinction between the parties’ uses. What was important in Nunez was that the defendant imbued the plaintiffs’ photographs with new meaning by transforming them from their original intent — modeling photographs — into the subject of a news story. Here, Defendant imbued the Photograph with no such new meaning; the Photograph, as already noted, was incorporated into the Article merely as an illustrative aid. Therefore, Defendant‘s citation to Nunez is unpersuasive, and the Court finds that Defendant‘s non-transformative use of the Photograph causes the first statutory factor to lean in Plaintiff‘s favor.
The other subfactors that the Court must consider in this first step — the
b. The Nature of the Copyrighted Work Factor Favors Neither Party
The second fair use factor is “the nature of the copyrighted work.”
Drawing all reasonable inferences in Plaintiff‘s favor, the Court finds that the second factor favors neither party. Although Defendant does not attempt to argue
c. The Amount and Substantiality Factor Favors Neither Party
The third factor in the fair use inquiry is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”
In the instant action, Defendant reproduced the Photograph in its entirety. However, “this factor ‘weighs less when considering a photograph — where all or most of the work often must be used in order to preserve any meaning at all — than a work such as a text or musical composition, where bits and pieces can be excerpted without losing all value.‘” Ferdman, 342 F. Supp. 3d at 539 (quoting N. Jersey Media Grp. Inc. v. Pirro, 74 F. Supp. 3d 605, 621 (S.D.N.Y. 2015)). Given the purpose for which the Photograph was used in the Article, it is difficult for the Court to see how less than the entirety of the Photograph could have been used. Therefore, even affording Plaintiff the deference his allegations are due at this stage in the litigation, the Court finds that this factor is neutral. See id. at 539-40 (finding the third factor to be neutral where no more of the work was taken than necessary).
d. The Effect of the Use Factor Favors Plaintiff
The fourth and final enumerated factor in the fair use inquiry is “the effect of the use upon the potential market for or value of the copyrighted work.”
The focus here is on whether defendants are offering a market substitute for the original.... [O]ur concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but
whether the secondary use usurps the market of the original work.
NXIVM Corp., 364 F.3d at 481-82. Put differently, the focus of the inquiry is “on whether the copy brings to the marketplace a competing substitute for the original, ... so as to deprive the rights holder of significant revenues because of the likelihood that potential purchasers may opt to acquire the copy in preference to the original.” Yang, 405 F. Supp. 3d at 547 (quoting Harper & Row, 471 U.S. at 566). Moreover, the Court must question “not only the market harm caused by the particular infringement, but also ... whether, if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work.” Barcroft Media, 297 F. Supp. 3d at 355 (quoting Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006)). “This inquiry ‘is necessarily intertwined with Factor One; the more the objective of [the] secondary use differs from that of the original, the less likely it will supplant the commercial market for the original.‘” Yang, 405 F. Supp. 3d at 547 (quoting Harper & Row, 471 U.S. at 566).
Defendant notes correctly that the Amended Complaint alleges no facts regarding the existence of a market for the Photograph or any usurpation of that market by Defendant‘s reproduction. (Def. Br. 20-21). However, as previously noted, the burden of proving fair use is Defendant‘s, see May, 399 F. Supp. 3d at 187, and therefore it is irrelevant whether Plaintiff has pleaded market usurpation. Moreover, as the Supreme Court has noted, there is a presumption of market harm “when a commercial use amounts to mere duplication of the entirety of an original.” Campbell, 510 U.S. at 591. As already noted in the Court‘s analysis of the first factor, Defendant‘s use of the Photograph was both commercial and a mere duplication of the original, as opposed to constituting a transformative use. Thus, the presumption applies here. See Ferdman, 342 F. Supp. 3d at 541 (finding a presumption of market harm applicable where the defendant‘s commercial use of the infringing photograph was a “duplication of the entirety of an original“). And given the applicability of the presumption and the lack of any countervailing considerations in the pleadings, the Court finds that the final factor favors Plaintiff.
In sum, the Court finds that the first and fourth factors favor Plaintiff, while the second and third factors are neutral. Under these circumstances, it is not possible for the Court to conclude that Defendant‘s use of the Photograph was fair as a matter of law. Accordingly, Defendant‘s motion to dismiss based on its alleged fair use of the Photograph is denied.
3. Plaintiff Has Adequately Pleaded Willfulness
In his Amended Complaint, Plaintiff has requested that he be awarded statutory damages pursuant to
C. The Court Grants Defendant‘s Motion to Dismiss Plaintiff‘s Claims for Contributory and Vicarious Infringement
Defendant has moved to dismiss Plaintiff‘s claims for contributory and vicarious infringement. (Def. Br. 22-25). Defendant argues that the Amended Complaint alleges no facts whatsoever to support any theory of secondary liability, and instead merely recites conclusory language. (Id. at 23). In order to allege a claim of contributory infringement, a plaintiff must allege facts showing that the defendant, with knowledge of the infringing activity, materially contributed to the infringing conduct of a third party. See Smith v. BarnesandNoble.com, LLC, 143 F. Supp. 3d 115, 124 (S.D.N.Y. 2015). By contrast, a claim of vicarious infringement requires a plaintiff to allege “that a defendant has declined to exercise the right and ability to supervise or control the infringing activity [by a third party] and enjoys a direct financial benefit from the infringing activity.” Rams v. Def Jam Recordings, Inc., 202 F. Supp. 3d 376, 385 (S.D.N.Y. 2016).
Defendant is correct that the Amended Complaint fails to allege any facts that would support a claim of either contributory or vicarious liability. Indeed, apart from alleging that unidentified defendants “contributed to the infringement of Plaintiff‘s copyrights, or have engaged in one or more of the wrongful practices alleged herein” (Am. Compl. ¶ 6), there are no facts supporting the existence of any third parties, as both theories clearly require. All of Plaintiff‘s allegations regarding his claims for contributory and vicarious infringement are no more than “threadbare recitals of the elements of a cause of action,” Harris, 572 F.3d at 72, and therefore fail to meet the pleading standards required by Iqbal and Twombly.6 Accordingly, Defendant‘s motion to dismiss Plaintiff‘s claims for contributory and vicarious infringement is granted.
D. The Court Denies Plaintiff‘s Request for Leave to Amend
While Plaintiff “maintains that there are no deficiencies in his [Amended] Complaint,” he asks the Court for leave to amend should the Court find his pleadings deficient in any way. (Pl. Opp. 23). Although the Court acknowledges that
CONCLUSION
For the reasons set forth in this Opinion, Defendant‘s motion to dismiss is GRANTED IN PART and DENIED IN PART. Defendant‘s motion to dismiss Plaintiff‘s claim of direct copyright infringement is DENIED, as is Defendant‘s motion to dismiss Plaintiff‘s prayer for enhanced damages. However, Defendant‘s motion to dismiss Plaintiff‘s claims for contributory and vicarious infringement is GRANTED. In turn, Plaintiff‘s request for leave to amend the Amended Complaint is DENIED.
The Clerk of Court is directed to terminate the motion at docket entry 20. On or before June 22, 2020, Defendant shall file a responsive pleading. On or before June 29, 2020, the parties shall submit a proposed Case Management Plan, as well as the joint status letter contemplated by the Plan.
SO ORDERED.
Dated: June 1, 2020 New York, New York
KATHERINE POLK FAILLA United States District Judge