In a January 31, 2014 ruling, Judge Kimba M. Wood granted defendant The McGraw-Hill Companies’ motion to dismiss plaintiff David Young-Wolff’s copyright infringement claim under Rule 12(b)(6). Young-Wolff alleged that McGraw-Hill used his copyrighted photographs in text books that it published. Young-Wolff further alleged that it licensed certain photographs to McGraw-Hill for certain specified texts to be published in specified numbers. McGraw-Hill, according to Young-Wolff, “(1) published Plaintiff’s photographs without permission; (2) reused Plaintiff’s photographs in subsequent editions of titles without obtaining a valid license; (3) published Plaintiff’s photographs prior to obtaining a valid license; (4) exceeded limited license agreements. . .; and (5) refused to provide information to Plaintiff regarding the scope of its past, current, and ongoing use of Plaintiff’s photographs.” The Court began its analysis by noting that a “‘properly plead copyright infringement claim 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.’” McGraw-Hill asserted that Young-Wolff had failed to allege that the copyrights have been duly registered, and to specify the acts and times of infringement. Although Judge Wood rejected most of McGraw-Hill’s arguments, the Court did find that “Plaintiff has failed to adequately allege ‘during what time the defendant infringed the copyright.’”
McGraw argued that Young-Wolff had failed to adequately allege registration because he did not specify the registration numbers, and merely alleged that he is the owner of the works at issue in the complaint and that “‘Plaintiff registered copyright in each of the photographs identified . . . with the United States Copyright Office prior to initiating this action.’” Judge Wood rejected this contention, finding that several “courts have held similar claims sufficient to meet the” pleading requirements and “have rejected the argument, raised by Defendant here, that a plaintiff is required to plead the actual copyright registration numbers of the photographs at issue at the motion to dismiss stage.”
The Court did agree with McGraw-Hill, however, “that the Complaint does not ‘contain a single date or reference to a time period,’” and thus found that it “fails to specify ‘during what time the defendant infringed the copyright.’” Judge Wood dismissed the complaint, but granted leave to replead because the defect is “curable.” Judge Wood also dismissed Young-Wolff’s declaratory judgment action for an audit of McGraw-Hill’s use of his photographs, writing that nothing in the Copyright Act indicates “that a copyright owner has an inherent right to sue a licensee for an audit.”
