Scribd

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 18-80572-CIV-DIMITROULEAS LICKERISH, LTD., Plaintiff, vs. Z LIFESTYLE D/B/A WORLDLIFESTYLE.COM, Defendant. ___________________________________/

ORDER DENY

ING DEFENDANT’S

MOTION TO DISMISS COMPLAINT

THIS CAUSE is before the Court upon Defendant

Z Lifestyle LLC’s

Motion to Dismiss the Complaint [DE 6]. The Court has carefully considered the Motion [DE 6], the Response [DE 9], the Reply [DE 10], the record in this case, and is otherwise advised in the premises. For the reasons set forth below,

Defendant’s Motion to Dismiss [DE 6] is denied.

I.

Background

Plaintiff Lickerish, Ltd. (“

Plaintiff

”) is

a photographic syndication company that provides images to communication businesses. ¶ 2.

1

Plaintiff has developed a large clientele through its extensive library of pictures of celebrities and models taken by internationally-renowned photographers. ¶ 2. Plaintiff created seven photograp

hs (the “Works”), which includes

6 photos of Melania Trump (the

“

Melania Works

”)

and a photo of Maggie Vessey,

(“

the Maggie Work

”)

. ¶¶ 10-11. Plaintiff registered the Melania Works and the Maggie Work with the Register of Copyrights. ¶ 11.

Defendant Z Lifestyle LLC (“Defendant”) is a human interest entertainment

website. ¶ 3. On a date after the Works were created, Defendant, who has never been licensed to use the Works, copied the Works. ¶¶ 13-14. After Defendant initially copied the Works, it made

1

Facts in the background section are taken from the Complaint [DE 1].

Case 9:18-cv-80572-WPD Document 14 Entered on FLSD Docket 07/12/2018 Page 1 of 6

2 further copies and distributed the Works on the internet to promote the sale of goods and services as part of its website. ¶ 16. Plaintiff never gave Defendant permission or authority to copy, distribute or display the Works. ¶ 20. Plaintiff has brought a single action for copyright infringement against Defendant.

Defendant has filed a Motion to Dismiss Plaintiff’s Complaint [DE 6], arguing Plaintiff has not

adequately pled that it has standing to sue for the alleged copyright infringement. The Court finds that Plaintiff

’s Complaint [DE 1] is

adequately pled, and Plaintiff has standing to sue.

Accordingly, Defendant’s Motion to Dismiss [DE 6] is denied.

II.

Standard of Review

Under Federal Rule of Civil Procedure 8(a)(

2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an

unadorned, the-defendant-unlawfully-

harmed me accusation.”

Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly

, 550 U.S. 544, 555 (2007)). A pleading that

asserts mere “labels and conclusions” or “a formulaic recitation of the elements

of a cause of

action will not do.”

Twombly

, 550 U.S. at 555. And “on the assumption that all the allegations are true (even if doubtful in fact),” the factual allegations pleaded “must be enough to raise a right to relief above the speculative level.”

Id

.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Iqbal

, 556 U.S. at 678.

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepte

d as true, to ‘state a claim to relief that is plausible on its face.’”

Id

. (quoting

Twombly

, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable


3

for the misconduct alleged.”

Id

. This plausibility determination is “a context

-specific task that

requires the reviewing court to draw on its judicial experience and common sense.”

Id

. at 679.

“But where the well

-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged

—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”

Id

. (brackets in original) (quoting Fed. R. Civ. P. 8(a)(2)). “The Supreme Court has employed a ‘

two-

pronged approach’ in applying the foregoing principles: first, a reviewing court

should eliminate any allegations in the complaint that are merely legal conclusions; and second, where there are well-

pleaded factual allegations, ‘assume their veracity a

nd then determine

whether they plausibly give rise to an entitlement to relief.’”

Boyd v. Warden, Holman Correctional Facility

, 856 F.3d 853, 864 (11th Cir. 2017) (quoting

Iqbal

, 556 U.S. at 679).

III.

Discussion

“To make out a prima facie case of copyright inf

ringement, a plaintiff must show that (1) it owns a valid copyright in the [work] and (2) defendants copied protected elements from the

[work].”

Saregama India Ltd. v. Mosley

, 635 F.3d 1284, 1290 (11th Cir. 2011) (quoting

Peter Letterese &

Assocs., Inc. v. World Inst. of Scientology Enters., Int’l

, 533 F.3d 1287, 1300 (11th Cir. 2008)).

“

The legal or beneficial owner of an exclusive right under a copyright is entitled . . . to institute an action for any infringement of that particular right committed while he or she is the owner of it.

”

17 U.S.C. § 501(b). Plaintiff claims standing to sue for copyright infringement as the owner of the copyrights of the Works. Defendant argues that Plaintiff has not adequately alleged it has standing to enforce the copyrights. According to Defendant, Exhibit 1 to the Complaint [DE 1-2] (Certificates of Registration) shows that the respective photographers

—

not Plaintiff

—

own the copyrights in the Works.
