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Chelko v. Does JF Restaurants, LLC

United States District Court, W.D. North Carolina, Charlotte Division

July 22, 2019

KEVIN CHELKO, Plaintiff,



         THIS MATTER COMES before this Court on Defendant JF Restaurants, LLC's (“Defendant”) Motion to Dismiss (Doc. No. 7). Plaintiff Kevin Chelko (“Plaintiff”) responded to the Motion (Doc. No. 10). Defendant submitted a reply brief (Doc. No. 11). As such, this matter is ripe for disposition.


         The relevant facts to this matter are as follows. Plaintiff is a photographer living in North Carolina. (Compl. ¶ 1, 5). Defendant is a restaurant and catering company operating as “Just Fresh” in North Carolina. (Id. ¶ 6). Additionally, there are ten unnamed defendants. (Id. ¶ 37-42).

         From April 3, 2007 to July 16, 2008, Plaintiff entered into five contracts with Defendant for the licensed use of 327 copyrighted photographs owned by Plaintiff. (Id. ¶ 9-23). The licenses expired three years from the date of each contract. (Id.). The photographs are of food offered for sale by Defendant. (Id.). Defendant employed the photographs on posters, menus, display materials, promotional displays, gift cards, and its website and catering vehicle. (Id. ¶ 7).

         Though the contracts expired on or prior to July 16, 2011, Defendant continued thereafter to use the photographs. (Id. ¶ 24). Defendant also employed three photographs never licensed to it in violation of Plaintiff's copyrights. (Id. ¶ 28-33). Plaintiff notified Defendant that its continued use violated the licenses, but Defendant did not remove the displays or pay a licensing fee. (Id. ¶ 24-26). This infringement was willful and continued until at least 2016. (Id. ¶ 27).

         On January 31, 2013, Plaintiff's company, Kevin Chelko Photography, Inc., filed a complaint against Defendant for copyright infringement. See Kevin Chelko Photography, Inc., v. JF Restaurants, LLC, No. 3:13-CV-00060-GCM (“Chelko I”). This Court granted Defendant's Motion for Summary Judgment on January 19, 2017. The Court held that the copyrights in question were owned by Plaintiff himself and had not been transferred to his company, and so his company had no standing on which to sue. (Chelko I, Doc. No. 38). Some twenty months later, Plaintiff filed this Complaint in his personal capacity.

         Plaintiff sued Defendants on three causes of action: (1) direct copyright infringement under the Copyright Act of 1976, 17 U.S.C. § 101, et seq. (2) vicarious copyright infringement from the unnamed defendants' direction of and supervision over the infringing conduct, and (3) violation of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1202. Defendant moved to dismiss the suit as time barred per the statute of limitations set by 17 U.S.C. § 507(b). Additionally, as to claims (2) and (3), Defendant moved to dismiss for a failure to state a plausible claim.


         When faced with a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must “accept as true all well-pleaded allegations and . . . view the complaint in a light most favorable to the plaintiff.” Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The Court “assume[s] the[] veracity” of these facts, and “determine[s] whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). However, the Court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs. LLP, 213 F.3d 175, 180 (4th Cir. 2000). The complaint must be supported by “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of a cause of action's elements, supported by mere conclusory statements, do not suffice.” Id. (citation omitted). If a statute of limitations affirmative defense is raised in a motion to dismiss, the Court must decide if “the [complaint] sets forth on its face the facts necessary to conclude that [the] plaintiff's claims are barred by the statute of limitations.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (emphasis omitted).


         The Court will first discuss Defendant's Motion as to Count II, and as to Does 1-10.

         a. Plaintiff's Secondary Infringement Claim and Claims Against Does 1-10

         Plaintiff sued ten unnamed defendants for direct copyright infringement, vicarious copyright infringement, and for violations of the DMCA. Defendant in its Motion to Dismiss argued that these claims either fail to plead sufficient facts to be plausible, or in the alternative, are time barred by the statute of limitations. Plaintiff in his brief states that he “does not oppose this motion with respect to his secondary infringement claim, ” and that “in the event [he] discovers additional defendants, ” they will be addressed “through the prosecution of the direct infringement claim.” (Doc. No. 10, at 1 n.1). This Court finds that Plaintiff has abandoned his Count II claim and all claims against the unnamed defendants, and thus, Defendant's Motion to Dismiss regarding them is GRANTED.

         b. Plaintiff's Claim of Direct Infringement

         The Court will next address Plaintiff's direct infringement claim. Plaintiff alleges infringement of his copyrights in deprivation of his exclusive rights under 17 U.S.C. § 106. Defendant claims in its Motion that ...

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