Case 4:23-cv-00183-TWP-KMB Document 23 Filed 02/29/24 Page 1 of 12 PageID #: 201

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

ALEXANDER BAYONNE STROSS :

Plaintiff, :

V. : Civil Case # 4:23-cv-00183

HOMESTEAD PROPERTIES INC DBA :

TINY TIMBERS
Defendant. :

REPLY TO STROSS’ RESPONSE

TO DISMISS UNDER FEDERAL RULES 12(b)(1)

Defendant Homestead Properties, Inc. dba Tiny Timbers (hereinafter referred to as Tiny

Timbers), by counsel, respectfully submits this Reply to Plaintiff Alexander Bayonne

Stross’ (hereinafter referred to Stross) to the Rule 12(b)(1) Motion to Dismiss (Doc 22).

I. Introduction.

II. Reply Argument.

A. Essence of Motion to Dismiss for Lack of Jurisdiction.

Tiny Timbers opened its Argument noting that Plaintiff Stross “has the burden of

supporting the allegations of jurisdictional facts by competent proof,” Grafon Corp. v.

Hausermann, 602 F.2d 781, 783 (7th Cir. 1979).

The only claimed copyright Stross made was in ¶11 of the Complaint. ¶11 set

forth a photograph entitled “cv_2403310_10.” On the bottom right corner of the

photograph is a © and A3S watermark. ¶12 alleges the photograph was registered by the

Copyright Office on April 9, 2010.

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Tiny Timbers then explained why the Complaint should be dismissed on the basis

of a lack of jurisdiction. Tiny Timbers acknowledged the general subject matter

jurisdiction provisions regarding general subject matter jurisdiction under Article III,

Section 2, Clause 1, Constitution and under 28 U.S.C. §1331. Tiny Timbers also

acknowledged specific subject matter jurisdiction regarding copyrights under Article I,

Section 8, Clause 8, Constitution and under 28 U.S.C. §1339(c).

The Motion to Dismiss then confirmed that 17 U.S.C. §401(a) is a jurisdictional

section for copyrights prohibiting a,

civil action for infringement of the copyright in any United States work
shall be instituted until preregistration or registration of the copyright
claim has been made in accordance with this title.

This Title 17 jurisdictional requirement has been confirmed in Unicolors, Inc. v.

H&M Hennes & Mauritz, L.P., 595 U.S. 178, 211 L.Ed.2d 586, 590 (2022) (§411 is “a

prerequisite for bringing a ‘civil action for infringement’ of the copyrighted work. 17 U.

S. C. §411(a).”

Plaintiff Stross alleged that the photograph in ¶11 of the Complaint was entitled

“cv_240310_19.” Stross did not produce a photograph of the “cv_240310_19.”

Normally, the court must accept the well-pleaded allegations from the complaint as true

and draw all reasonable inferences in the plaintiff’s favor. Estate of Eiteljorg ex rel.

Eiteljorg v. Eiteljorg, 813 F. Supp. 2d 1069, 1073-74 (S.D. Ind. 2011). But there are

exceptions to the normal rule.

When considering a motion to dismiss under Rule 12(b)(1), the district

court “may properly look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction exists.”

Id., citing Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993).

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Essentially, it is well settled law, when determining whether subject-matter

jurisdiction exists, the court may consider evidence beyond the jurisdictional allegations

of a complaint. See St. John’s Church of Christ v. City of Chicago, 502 F.3d 616, 625

(7th Cir. 2006).

In the Complaint (Doc 1) ¶25 Stross alleges that he notified Tiny Timbers of the

infringement on October 15, 2021 and November 29, 2021. But the notification

(notification/demand letter) did not include the photograph depicted in ¶11 of the

Complaint. In the Motion to Dismiss Tiny Timbers submitted evidence that Stross had

sent a notification/demand letter to Tiny Timbers, which included the same photograph

allegedly copied, but which had no watermark signature or © mark. See Exhibit B (Doc

16-3).

Also significant is the photograph Tiny Timbers used (Exhibit 16-2) is the same

one as in the notification/demand letter, but it indicated that the copyright is with Dick

Clark Architecture shown in the citation at the bottom, “The City View Residence by

Dick Clark Architecture and indicate the copyright number of “CV_240310_19.” This is

the same number claimed by Stross.

In all six of the publications listed by Chapo there is a clear indication that Stross

was not the original owner of the photograph, he did not have a copyright, and he had no

A3S watermark on any of the publications.

B. Reply to Response of Stross.

At page 3 of his Response to the Motion to Dismiss for Lack of Jurisdiction (Doc 22),

Stross states,

In short, Defendant moves to dismiss for lack of subject matter jurisdiction

arguing that Plaintiff is not the copyright owner of the image at issue in

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the Complaint, and that he failed to provide a Certificate of Registration

applicable to the image.

The statement is partially true, but a more accurate statement would be that Tiny

Timbers had produced evidence from Stross notification/demand letter and numerous

other Exhibits showing that Stross may not be the owner, but rather Dick Clark

Architecture. If Stross was the owner, he would have produced a copy of the copyright

photograph entitled “cv_240310_19.” showing the watermark signature and ©.

Stross has ignored the well settled law that the court may look behind the

complaint and consider evidence indicating there is a subject matter jurisdictional issue.

In doing so Stross relies on the concept that “A certificate of registration from the U.S.

Register of Copyrights constitutes prima facie evidence of the validity of a copyright. 17

U.S.C. § 410(c).

Stross cited Columbia Pictures Indus., Inc. v. Landa, 974 F. Supp. 1, 7 (C.D. Ill.

1997) (“Such a certificate of registration establishes prima facie.”). Stross noted that

Landa cited Wildlife Express Corp. v. Carol Wright Sales, Inc., 17 F.3d 502, 507 (7th

Cir. 1994). The citation used by Stross for Wildlife is incorrect. It should be 18 F.3d 502.

Landa cited Wildlife Express for these principles, “To establish liability for

copyright infringement, plaintiff must prove ‘(1) ownership of a valid copyright and

(2) copying by the defendant.’” Wildlife Express at 507. But Wildlife Express had more to

say, which was ignored by Stross.

Both Landa and Wildlife use the term “prima facie” to indicate that a certificate of

registration is “prima facie” evidence that the copyright is valid. A later case JCW Invs.,

Inc. v. Novelty, Inc. 482 F.3d 910, 914-915 (7th Cir. 2007) holds the same “The owner of

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a copyright may obtain a certificate of copyright, which is ‘prima facie evidence” of its

validity.”

But “prima facie” evidence can be rebutted. Black’s Law Dictionary defines

“prima facie” as “Evidence that, on its face, would be sufficient to establish something as

a fact unless later rebutted by subsequent evidence to the contrary.” This definition leads

to the conclusions that “prima facie” evidence is presumptive evidence and can be

rebutted, See Mid Am. Title Co. V. Kirk, 59 F.3d 719, 721 (7th Cir. 1995) (“a prima facie

presumption of validity … is simply a rebuttable presumption.”). See also Thomas &

Betts Corp. v. Panduit Corp., 138 F.3d 277, 301 (7th Cir. 1995) noted “the presumption of

validity can be rebutted.” Panduit also noted that for the rebuttal to occur, proof of

material facts must be raised. It is well settled, the defendant has the burden of proof of

overcoming the presumption of validity, Wihtol v. Wells, 231 F.2d 550, 553 (7th Cir.

1956).

“Prima facie” evidence can be rebutted and case law supports a rebuttal in a

motion to challenge subject matter jurisdiction

Normally, the court must accept the well-pleaded allegations from the complaint

as true and draw all reasonable inferences in the plaintiff’s favor. Estate of Eiteljorg ex

rel. Eiteljorg v. Eiteljorg, 813 F. Supp. 2d 1069, 1073-74 (S.D. Ind. 2011) (citing

Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir. 2002), for Rule 12(b)(1)

standard). But it is also true that “[w]hen considering a motion to dismiss under Rule

12(b)(1), the district court may properly look beyond the jurisdictional allegations of the

complaint and view whatever evidence has been submitted on the issue to determine

whether in fact subject matter jurisdiction exists.” See Eiteljorg, supra, 813 F. Supp. 2d

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at 1074 (quoting Capitol Leasing Co., v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993)). In

other words, when determining whether subject-matter jurisdiction exists, the court may

consider evidence beyond the jurisdictional allegations of a complaint. See St. John’s

Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2006).

Stross did not address these cases, 17 U.S.C. §410(c) ort the incorporation of

documents referred to in the complaint (discussed in more detail below), which states,

(c) In any judicial proceedings the certificate of a registration made before

or within five years after first publication of the work shall constitute
prima facie evidence of the validity of the copyright and of the facts stated
in the certificate. The evidentiary weight to be accorded the certificate of a
registration made thereafter shall be within the discretion of the court.

§410(c) gives the court discretion to the weight of certification.

Stross has presented only a “prima facie” presumptuous claim of certification with no

certified photograph with a watermark signature or © mark. The Chapo Affidavit and

Exhibits (Docs 16-1 through 16-8) show that there are three serious questions as to

copyright Stross claims to own. They are fully discussed in the Memorandum (Doc 16)

and include,

1. Stross claimed to own a photograph used by Tiny Timbers that did not contain a
signature watermark or © mark as claimed in the photograph in ¶11 of the
Complaint;
2. The photograph used by Tiny Timbers gives the impression the © was owned by
Dick Clark Architecture;
3. At least four other Exhibits show Dick Clark Architecture having the copyright;
and
4. The link published date of the photograph used by Tiny Timber is prior to Stross’
claimed copyright of April 9, 2010.

In addition, a search of cases reveals that Stross filed at least one other copyright

case, which involved Dick Clark Architecture and the photograph without the watermark

signature and © mark. As shown above, almost every time the City View Residence by

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Dick Clark Architecture was published, it was published using, not a photo with a

watermark signature, but a photo identical to the Dick Clark Architecture photo in

Exhibit C (Doc 16-4) of the Memo supporting the Motion to Dismiss for Lack of

Jurisdiction (Doc 16). It is never published with a watermark signature and © mark.

The case was Stross v. Stone Textile, 2019 U.S. Dist. LEXIS 149424 (WD Texas,

June 29, 2019). In Stone Textile the City View by Dick Clark Architecture was a part of

the case. The court was addressing a motion for summary judgment by Stone Textile.

Most important aspect in the Stone Textile case as it relates to the current case is found in

the Complaint against Stone Textile, attached as Exhibit A.

In the Stone Textile Compliant (attached as Exhibit A) at ¶8 Stross alleged that the

City View photo was copyrighted, using the identical language as used in the instant

Complaint at ¶¶11-12. The case was settled. See Exhibit B. Thus, there was no legal

determination of the copyright. The crucial difference for purposes of the Motion to

Dismiss for lack of jurisdiction is the photo in the Stone Textile case had no watermark

signature, or a © mark, while the photo in the instant case has a watermark signature and

a © mark. But another significant difference is that the Stross Complaint against Stone

Textile did not allege that Stone Textile removed any copyright management information,

including the watermark signature and © mark. Stross made it clear at ¶8 of the Stone

Textile Complaint the photograph was “a true and correct reproduction of which is

below.”

Thus, in the Stone Textile case Stross is claiming the photograph without any

copyright management information is “a true and correct reproduction.” Yet, at ¶¶11-15

in the instant Complaint, Stross is alleging the same photograph with a watermark

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signature and © mark is copyrighted with the same copyright identification numbers.

Both cannot be true.

When Stross addressed the legal standards relating to a motion to dismiss for both

Rule 12(b)(1) – Motion to Dismiss for lack of jurisdiction and Rule 12(6) – Motion to

dismiss for failure to state a claim, he correctly cited cases that address the normal

standards. Stross ignored the cases that allow a challenge to the “prima facie” rebuttable

presumption of validity.

Stross claims the Motion to Dismiss “confuses copyright ownership with the

registration process at the U.S. Copyright Office.” See page 5 of Doc 22. To buttress his

inaccurate assessment of the Motion to Dismiss, Stross quotes 17 U.S.C. §§102-201,

“‘Copyright protection subsists . . . in original works of authorship fixed in any tangible

medium of expression,’ and “vests initially in the author or authors of the work.’”

The Motion to Dismiss was not questioning the copyright procedure, but rather,

was addressing the lack of proof that the tangible photograph with a watermark signature

and a © mark was actually registered with the copyright office. Stross alleged, “prima

facie” presumptive evidence that there was a registration, but the evidence in Chapo’s

affidavit strongly indicates there was no such registration.

At page 5 of his Response Stross cites South Southall v. Force Partners, LLC, No.

1:20-CV-03223, 2021 WL 3883082, at *2 (N.D. Ill. Aug. 31, 2021). Stross then quotes

South Southall, as saying “get into nit-picky allegations like whether the photograph was

indeed part of the deposited materials.” He the cites two cases Hurst v. Hantke, 634 F.3d

409, 411 (7th Cir. 2011) (noting that the Federal Rules of Civil Procedure do not “require

a plaintiff to attach evidence to his complaint”) and Ino, Inc. v. Needle & Threads of West

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Palm Beach, Inc., 2020 WL 7343037, at *4 (E.D.N.Y. Dec. 14, 2020) (holding that a

plaintiff is not required to attach copies of registration certificates or provide registration

numbers to survive a motion to dismiss)). Stross concludes his Complaint in this action is

more than sufficient to meet these pleading standards.

But neither Hurst, nor Ino, Inc. actually support his claim. Hurst is a civil rights

case under 42 U.S.C. §1983. It had nothing to do with copyright law.

But Ino, Inc. indicates the opposite of what Stross is arguing. Ino, Inc. cited

Lussoro v. Ocean Fin. Fed. Credit Union, 456 F. Supp. 3d 474, 480–81 (E.D.N.Y. 2020).

In considering a motion to dismiss under FRCP 12(b)(6), the Court is

limited “to the facts alleged in the complaint, the documents attached to
the complaint or incorporated therein by reference, and documents that,
while not explicitly incorporated into the complaint, are integral to
the plaintiff’s claims and were relied upon in drafting the complaint.”
(Emphasis added)

This would also apply to Rule 12(b)(1) motions to dismiss for lack of jurisdiction,

since the standards for dismissal as essentially the same, see Stross Response (Doc 22) at

page 3,

The legal standards on a motion to dismiss under Rule 12(b)(6) and a

motion to dismiss under Rule 12(b)(1) are essentially the same.”
PropertyThree Tech. Grp., Inc. v. Apartment Hunters, Inc., No. 1:07-CV-
356-RLY-JMS, 2008 WL 11374380, at *2 (S.D. Ind. May 20, 2008).

Incorporation is a well-established doctrine. Court must also consider “documents

attached to the complaint, documents that are critical to the complaint and referred to in

it, and information that is subject to proper judicial notice.” See Phillips v. Prudential Ins.

Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013).

To the extent that an exhibit attached to or referenced by the complaint

contradicts the complaint's allegations, the exhibit takes precedence. See Forrest v.

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Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir.2007). (“Taking all facts pleaded in

the complaint as true and construing all inferences in the plaintiffs favor, we review the

complaint and all exhibits attached to the complaint.”) See Massey v. Merrill Lynch Co.,

Inc., 464 F.3d 642, 645 (7th Cir.2006). Where an exhibit and the complaint conflict, the

exhibit typically controls, Id. A court is not bound by the party's characterization of an

exhibit and may independently examine and form its own opinions about the document.

See McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir.2006). “A complaint should only

be dismissed if there is no set of facts, even hypothesized, that could entitle a plaintiff to

relief.” Massey, 464 F.3d at 645.

At ¶25 of the Complaint Stross directly referred to the notification/demand letter

to Tiny Timbers, in which he specifically claimed the photograph that did not has a

watermark signature and a © mark was registered with the same copyright information as

in the instant complaint.

South Southall at *4 also made this conclusion, “The allegations are entitled to the

assumption of truth as long as they are factual in nature, rather than mere legal

conclusions.” Stross has made a legal conclusion that his photograph listed in ¶11 of the

Complaint was in fact evidence of his ownership. All of the other photographs indicate

the copyright was with Dick Clark Architecture. Stross has not shown otherwise.

South Southall also cited Leveyfilm, Inc. v. Fox Sports Interactive Media, LLC,

999 F. Supp. 2d 1098, 1102 (N.D. Ill. 2014) giving a plausible inference that the notice

on the item referred to the ownership of the copyright. In the instant case the photograph

used by Tiny Timbers (Doc 16-2), and others, had the credit line at the bottom showing

that Dick Clark Architecture, not Stross, had the copyright.

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It should also be noted South Southall did not address the incorporation doctrine

of looking at documents referred to in complaint, which is a major issue in the instant

case.

A case not in the 7th Circuit, which illustrates a principle that should be endorsed

in the Circuit is Mercer Publ. Inc. v. Smart Cookie Ink, LLC, 2012 U.S. Dist. LEXIS

192461, *4 (W.D.Wa., 2012). Mercer held,

Indeed, it is Plaintiffs' burden to prove ownership of a valid copyright. But

a certificate of registration combined with a published copy of the work
named in that certificate may suffice.

Stross did not produce a published copy of his photograph. He just referred to the

numbers showing some general copyright. Where there is evidence referred to the

Complaint showing that Stross may not own the copyright of the photograph, he must

proof a valid copyright. “Prima Facie” presumptive evidence in this case is not sufficient.

III. Conclusion.

Tiny Timbers has shown through evidence obtained by examining the

notification/demand letter referred to in Stross’s complaint that Stross has not presented

valid proof of a copyright registration for his photograph in ¶1 of the Complaint, only

“prima facie” presumptive evidence. Accordingly, Tiny Timber respectfully submits that

the Court dismiss the complaint, because without solid proof Stross owns the copyright

on a photograph that has a watermark signature and a © mark, the Court lacks subject

matter jurisdiction.

Dated February 29, 2024 Respectfully submitted,

s/ Charles E. McFarland
Charles E. McFarland
Ohio Bar # 0031808

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Attorney at Law
338 Jackson Rd.
New Castle, Kentucky 40050
mcfarlandc@bellsouth.net
(502) 232-5084

CERTIFICATE OF SERVICE

The undersigned does hereby state that I filed the above Reply Clerk of Courts the

Court’s MC/ECF electronic filing system on February 29, 2024 and will be distributed to

the following shortly after its filing to the following through his e-mail address:

Attorney for the Plaintiff – J. Campbell Miller, Campbell.miller@sriplaw.com

s/ Charles E. McFarland

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