United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant Harley Obolensky
Morgan's (“Morgan”) Motion to Dismiss the
Complaint [Docs. 12, 13].
January 3, 2019, the Plaintiff David Oppenheimer
(“Plaintiff”) filed this action against the
Defendants Morgan and Capital at Play, Inc.
(“Capital” and collectively, the
“Defendants”), asserting claims under the
Copyright Act, 17 U.S.C. §§ 101 et seq. and the
Digital Millennium Copyright Act (“DMCA”), 17
U.S.C. §§ 1202, et seq. [Doc. 1]. In his Complaint,
the Plaintiff alleges that the Defendants infringed two of
his copyrights when they published two of his copyrighted
photographs on their website. [Id. at ¶ 11].
Specifically, the Plaintiff alleges the Defendants either
non-willfully (Count I) or willfully (Count II) infringed on
his copyrights by publishing the photographs and violated the
DMCA by removing copyright management information from the
photographs (Count III). The Plaintiff also alleges Defendant
Morgan is liable under theories of contributory copyright
infringement (Count IV) and vicarious liability (Count V).
Morgan now seeks the dismissal of this action pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure,
arguing that the Plaintiff's Complaint fails to state
claims upon which relief can be granted. [Doc. 12, 13]. The
Plaintiff has filed an opposition to Defendant Morgan's
motion [Doc. 15], to which Defendant Morgan has replied [Doc.
been fully briefed, this matter is ripe for disposition.
STANDARD OF REVIEW
central issue for resolving a Rule 12(b)(6) motion is whether
the claims state a plausible claim for relief. See
Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir.
2009). In considering Defendant Morgan's motion, the
Court accepts the allegations in the Complaint as true and
construes them in the light most favorable to Plaintiff.
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588
F.3d at 190-92. Although the Court accepts well-pled facts as
true, it is not required to accept “legal conclusions,
elements of a cause of action, and bare assertions devoid of
further factual enhancement. . . .”
Consumeraffairs.com, 591 F.3d at 225; see also
Giacomelli, 588 F.3d at 189.
claims need not contain “detailed factual allegations,
” but must contain sufficient factual allegations to
suggest the required elements of a cause of action. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see
also Consumeraffairs.com, 591 F.3d at 256.
“[A] formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555.
Nor will mere labels and legal conclusions suffice.
complaint is required to contain “enough facts to state
a claim to relief that is plausible on its face.”
Id. at 570; see also Consumeraffairs.com, 591 F.3d
at 255. “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
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); see also
Consumeraffairs.com, 591 F.3d at 255. The mere
possibility that a defendant acted unlawfully is insufficient
to survive a motion to dismiss. Consumeraffairs.com,
591 F.3d at 256; Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009). Ultimately, the well-pled factual
allegations must move a plaintiff's claim from possible
to plausible. Twombly, 550 U.S. at 570;
Consumeraffairs.com, 591 F.3d at 256.
the well-pleaded factual allegations of the Complaint as
true, the following is a summary of the relevant
Plaintiff is a professional photographer who takes
photographs and publishes them to a website for sale. [Doc. 1
at ¶¶ 6-7]. The Plaintiff created the two
photographs at issue here. [Id. at ¶ 6]. Before
uploading the two photographs, the Plaintiff obtained
copyrights for them and added copyright management
information, including a watermark, a caption, and metadata.
[Id. at ¶¶ 8, 9, 10, 23].
point, the Plaintiff discovered that the two copyrighted
photographs had been uploaded to the Capital website.
[Id. at ¶¶ 11-12]. The uploaded
photographs were missing some of the copyright management
information the Plaintiff added when he published the
photographs on his website. [Id. at ¶¶
10-11]. On September 14, 2018, the Plaintiff notified the