OPINION & ORDER
Plaintiff, Oregon Catholic Press (“OCP”), brings its claims for copyright infringement under 17 U.S.C. § 501-13. Defendants are: International Liturgy Publications (“ILP”); Lamb Publications, LLC (“Lamb”); the president of ILP Vince Ambrosetti as an individual; and unnamed individuals Does 1-10. OCP and ILP had multiple agreements whereby OCP granted licenses to ILP to reprint certain songs. OCP’s claims fall into two categories. First are OCP’s claims that relate to ILP’s publication of OCP material in an allegedly unauthorized second edition of the Saint Augustine Hymnal (hereinafter “Hymnal Claims”). The second category is OCP’s claims that ILP published two songs—“Glorious God” and “Bright As the Sun”—without licenses in the book ‘You Are Holy” (hereinafter “Songbook Claims”). OCP is also suing Lamb and Ambrosetti for their roles in the alleged copyright infringement under theories of contributory and vicarious liability. Defendants now move to dismiss Plaintiffs claims on several grounds discussed below.
Defendants’ motion to dismiss is granted in part. The motion is denied regarding the Hymnal Claims. The motion is denied with respect to the song “Bright As the Sun.” The motion is denied with respect to OCP’s claims against Lamb and Ambroset-ti. The motion is granted with resрect to the song “Glorious God” and the Court also grants OCP’s request for leave to amend its complaint on this claim.
BACKGROUND
The following facts come from the Amended Complaint and documents referred to or relied upon in the Amended Complaint. OCP and ILP publish and sell hymnals and song books to Catholic parishes. Am. Compl. ¶¶4-6, 11-14, 28, ECF No. 23. On May 14, 2009, OCP and ILP entered into аn agreement (“2009 Agreement”) whereby OCP licensed certain songs to ILP to be published in the Saint Augustine Hymnal (“Hymnal”). Am. Compl. ¶ 11, Ex. C, at 6. The 2009 Agreement enumerated 75 OCP songs. Am. Compl. Ex. C, at 9-13. ILP published a “first edition” of the Hymnal in 2010. Am. Compl. ¶ 13.
Subsequently, the parties amended the 2009 Agreement on November 27, 2011 to permit ILP to publish “new editions” of the Hymnal (“2009/2011 Agreement”). Am. Compl. Ex. C, at 14-15. The 2009/2011 Agreement аlso extended the term of the license for a period of five years from September 27, 2011 to November 26, 2016. Id. Plaintiff contends that the 2009 Agreement was amended for the purpose of including a revised “Order of the Mass” at the beginning of the Hymnal pursuant to decision by the Bishops Committee on Divine Worship of the U.S. Conference of Catholic Bishops. Am. Compl. ¶ 13.
On February 3, 2014, the parties entered into another agreement (“2014 Agreement”) whereby OCP licensed up to 10 songs to be chosen by ILP to be published in any ILP publication. Am. Compl. ¶ 14, Ex. C, at 1. In July of 2014, Ambro-setti sent a letter on behalf of ILP stating that it intended to publish certain OCP
With respect to the Songbook Claims, OCP alleges that around June 15, 2010, it granted licenses to ILP to reprint certain songs including “Bright As the Sun” in certain publications including “Living World, Living Song, Living Faith” (“Living World”). Am. Compl. ¶ 12, Ex. C, at 23-25. In 2014, ILP published the songbook “You Are Holy” which included 12 OCP songs. Am. Compl. ¶ 19. OCP allеges that ILP did not have a license to publish the songs “Bright As the Sun” and “Glorious God” in “You Are, Holy.” Id. Defendants contends that OCP agreed to overlook the error regarding “Glorious God” and that its use of “Bright As the Sun” was proper because “You Are Holy” is merely “Living World” retitled. Mot. Dismiss 6,10-14, ECF No. 29,
STANDARDS
To survive a motion to dismiss, a complaint “must contain sufficient factual matter, аccepted as true, to state a claim to relief that is plausible on its face[,]” meaning “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
DISCUSSION
OCP alleges two claims of direct copyright infringement against ILP. First, the Hymnal Claims include OCP’s allegations that ILP exceeded the scope of its licenses under the 2009/2011 Agreement by publishing an unauthorized second edition of the Hymnal. OCP’s position is that the 2009/2011 Agreement permitted ILP to republish the original version of the Hymnаl with the addition of the “Order of Mass.” ILP disagrees with that restriction and contends that the second edition was permitted by the plain language of the 2009/2011 Agreement. Second, the Songbook Claims include OCP’s allegations that
“Plaintiffs must satisfy two requirements to present a prima facie case of direct [copyright] infringement: (1) they must show ownership of the allegedly infringed material and (2) they must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders under 17 U.S.C. § 106.” A & M Records. Inc. v. Napster. Inc.,
I. HYMNAL CLAIMS
The Court denies Defendants’ motion to dismiss OOP’s Hymnal Claims. Every OCP song that was published in the second edition of the Hymnal appears to be covered by the licenses in the parties’ Agreements.
The 2009 Agreement states: “These OCP songs may be reprinted only in the hard-covеr and soft-cover versions of the Hymnal. This license does not extend to accompaniment editions.” Am. Compl. Ex. C, at 6 (emphasis added). The 2011 Addendum states: “New editions of the St. Au
Defendants ask the Court to construe the meaning of “versions” and “editions” in their favor. In other words, the Court is being asked to reach the merits of the case well beyond what the scope of what a 12(b)(6) motion allows. Such a determination would be inappropriate at this juncture. Rather, when taking all of the mаterial allegations from the complaint as true, the Court construes them in the light most favorable to the nonmoving party. “A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no' set of facts in support of the claim that would entitle the plaintiff to relief.” Am. Family Ass’n, Inc. v. City & Cty. of San Francisco,
In this case, Plaintiff alleges thаt ILP exceeded the scope its licenses under the 2009/2011 Agreement by publishing OCP songs in an unauthorized second edition of the Hymnal. When construing the language of the 2009/2011 Agreement in the light most favorable to OCP, the Court finds that Plaintiff has pled sufficient facts to support the inference that ILP exceeded the scope of its licenses and engagеd in copyright infringement.
II. SONGBOOK CLAIMS
OCP alleges that ILP published “Glorious God” and “Bright As the Sun” in the songbook “You Are Holy” without valid licenses. ILP moves to dismiss the Songbook Claim regarding “Glorious God” on several grounds. ILP also claims that it had a valid license to publish “Bright As the Sun” under the 2010 Agreement which permitted publication in the book “Living World” allegedly retitled “You Are Holy.”
A. “Glorious God”
Defendants’ motiоn to dismiss OOP’s Songbook Claim regarding the song “Glorious God” is granted. The Court also grants Plaintiffs request to amend its complaint to include allegations that the copyrighted work is “registered.” Copyright registration is a precondition of filing a copyright infringement action. 17 U.S.C. § 411(a); Reed Elsevier, Inc. v. Muchnick,
Here, OCP failed to allege that “Glorious God” was registered in its Amended Complaint. Defendants pointed out this deficiency in the Amended Complaint; in response, OCP claims that it has submitted an application of registration. The Court grants OCP leave to amend its complaint to include allegations that it has submitted an application for registration of “Glorious God.”
B. “Bright As the Sun”
Defendants’ motion to dismiss OOP’s Songbook Claim regarding the song “Bright As the Sun” is denied. When taking the allegations on the fаce of the Complaint as true and in the light most favorable to the nonmoving party, OCP has alleged a plausible claim of copyright infringement against ILP for its publication of “Bright As the Sun” in “You Are Holy.” Defendants’ request for additional discovery on the issue is inappropriate at this juncture and well beyond the scope of a motion to dismiss. “Judgment on the pleadings is limited to material included in the pleadings.” Yakima Valley Mem’l
In the June 15, 2010 Agreement, OCP granted ILP the license to reprint “Bright As the Sun” in certain publications including “Living World.” Am. Compl. Exs. B, C, at 23-25. ILP subsequently published, the song in a songbook titled ‘You Are Holy,” claiming that only the title of the publication changed and “[i]n all other respects, ILP comportеd with the terms of the June 15, 2010 License.” Def. Mot. Dismiss. 13. OCP contends that ‘You Are Holy” is not the same work as “Living World” and the Court must construe the facts in the light most favorable to the nonmoving party. OCP licensed “Bright As the Sun” to ILP to be printed in a publication titled “Living World” and instead, ILP printed the work in a publication titled ‘You Are Holy.” OCP has alleged a cognizable copyright infringement claim and alleged sufficient facts allowing the Court to draw the reasonable inference that ILP is liable to OCP. Therefore, Defendants’ motion to dismiss this claim is denied.
III. CLAIMS AGAINST LAMB AND AMBROSETTI
OCP claims that Lamb, who publishes for and is owned by ILP, is liable for its role in ILP’s alleged direct copyright infringement. OCP also claims that Ambro-setti, the President and publisher of ILP, is personally liаble for playing a controlling role in the alleged direct infringement and deriving a direct financial benefit from it.
A party may be vicariously or con-tributorily liable for the direct copyright infringement of a third party. First, vicarious liability requires that the party: “(1) has the right and ability to control [ILP’s] putatively infringing activity and (2) derives a direct financial benefit from [its] activity.” MDY Indus., LLC v. Blizzard Entm’t. Inc.,
Second, a party may be contribu-torily liable for another party’s alleged copyright infringement for intentionally inducing or encouraging the direct infringement. Id at 937-38. “[0]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing misconduct of another, may be held liable as a ‘contributory’ infringer[.]” Perfect 10, Inc. v. Amazon.com. Inc.,
A. Lamb Publications, LLC.
The Court denies Defendants’ request to dismiss OOP’s claims that Lamb is liable for ILP’s alleged copyright infringement.
OCP alleges that Lamb “[w]ith knowledge of the infringement ... materially contributed to the infringing of others.” Am. Compl. ¶ 29. Plaintiff further alleges that Lamb published and distributed the second edition of the Hymnal and thе songbook ‘You Are Holy;” both of which contain OCP songs that ILP allegedly did not have licenses to reprint. Id ¶ 27-30. The Amended Complaint contains sufficient factual allegations to support the reasonable inference that Lamb knowingly included unlicensed songs in books that it published and distributed. Therefore, the Court denies Defendants’ motion to dismiss OOP’s clаims against Lamb.
B. Vince Ambrosetti
The Court denies Defendants’ motion to dismiss OOP’s claims against Am-brosetti. The Court finds that OCP has alleged sufficient factual content in its complaint to support a plausible claim for relief: vicarious liability for direct copyright infringement.
Here, OCP has alleged that Ambrosetti, as president and publisher of ILP, had access to the contracts between the parties and that he derived a direct financial benefit from the Hymnal and “You Are Holy.” Am. Compl. ¶¶ 38-39. Further, OCP alleges that Ambrosetti wrote the letter identifying the OCP songs that ILP planned to reprint in the Hymnal. Id OCP has alleged sufficient facts to support the conclusion that Ambrosetti had both the right and ability to control the infringing activity. Indeed, as the president of ILP, the Court can infer that he derived direct financial benefits from the sale of the Hymnal and You Are Holy. Therefore, the Court finds that when construing the facts in the light most favorable to the non-moving party, Plaintiff has allеged sufficient facts to demonstrate that Ambrosetti may be vicariously liable for ILP’s alleged copyright infringement.
Moreover, while there may be other grounds for dismissing claims against Ambrosetti and Lamb, Defendants only argued that ILP is not directly liable therefore Ambrosetti and Lamb cannot be secondarily liable. As discussed above, the Court has denied Defendants’ motion to dismiss at least some of OCP’s claims against ILP. Because claims of direct copyright infringement against ILP survive Defendants’ motion to dismiss, Defendants’ argument on this ground is unavailing.
ORDER
Defendants’ motion to dismiss is hereby granted in part for the reasons discussed above. The motion is: denied with respect to the Hymnal Claims; granted with respect tо the Songbook Claim regarding “Glorious God”; denied with respect to the Songbook Claim regarding “Bright As the Sun.” The motion is denied with respect to OCP’s claims against Lamb and Ambroset-ti. Plaintiffs request for leave to amend its complaint to include allegations that it has submitted an application for registration of “Glorious God” is granted.
Notes
. The Court declines thе invitation to consider documents outside of the pleadings which would require converting this motion to dismiss into a motion for summary judgment. Fed. R, Civ. P. 12(d), The Court did consider Defendants’ Exhibit E (the table of contents to the second edition of the Hymnal) but it excluded Exhibit F (Nudo email). Schaffer Deel. Exs, E, F. The district court "may consider a document the authenticity of which is not contested, and upon which the, plaintiff’s complaint necessarily relies,” Parrino v. FHP. Inc.,