United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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).
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
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.
STANDARD OF REVIEW
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)
Court will first discuss Defendant's Motion as to Count
II, and as to Does 1-10.
Plaintiff's Secondary Infringement Claim and Claims
Against Does 1-10
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
Plaintiff's Claim of Direct Infringement
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 ...