United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS PLAINTIFF'S AMENDED COMPLAINT (ECF No.
F. Cox, United States District Court Judge.
a copyright infringement case. A photographer claims that a
beer company copied one of her works to use on its website.
The beer company has moved to dismiss. For the reasons
below, the Court will deny the motion to dismiss.
Nevena Vrachovska is a professional photographer. Compl.
¶ 2. In 2009, Vrachovska photographed the statute of the
philosopher Plato that sits outside the Academy of Athens in
Greece. (ECF No. 11-1, PageID 48). On October 30, 2014,
Vrachovska registered this photograph with the Register of
Copyrights. Id. At all times relevant to this
action, the photograph was available to the public, for
purchase, on www.alamy.com. Compl. ¶ 19.
Beacoz L.L.C., d/b/a/ 8 Degrees Plato Beer Company is a
company that sells beer and offers private beverage catering,
beer consulting services, and keg deliveries. Id. at
¶ 3. On May 31, 2017, 8 Degrees Plato posted an article
on its website, explaining the meaning of the phrase
“degrees Plato.” (ECF No. 11-2, PageID 50). Above
this article, 8 Degrees Plato included a photograph of the
Plato statute. Id.
November 16, 2018, Vrachovska filed a one-count complaint
against 8 Degrees Plato, alleging that it had
“copied” her photograph, without permission, and
that her photograph and the one used by 8 Degrees Plato were
“identical in all respects.” Id. at
¶ 15-17; 20-21. On January 16, 2019, 8 Degrees Plato
moved to dismiss the complaint. (ECF No. 8). Thereafter,
Vrachovska filed an amended complaint. (ECF No. 11). 8
Degrees Plato now moves to dismiss the amended complaint.
(ECF No. 12).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the plaintiff's
complaint. To survive, the complaint must state sufficient
“facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). Claims comprised of “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555.
“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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
the court must accept all well-pleaded factual allegations as
true for purposes of a motion to dismiss, the court is
“not bound to accept as true a legal conclusion couched
as a factual allegation.” Twombly, 550 U.S. at
555. Thus, to avoid dismissal, “a complaint must
contain sufficient factual matter, ” accepted as true,
to state a claim for relief that is plausible on its face.
Id. at 678.
infringement...lends itself readily to abusive litigation,
since the high cost of trying such a case can force a
defendant who might otherwise be successful in trial to
settle in order to avoid the time and expenditure of a
resource intensive case. Therefore, greater particularity in
pleading, through showing ‘plausible grounds', is
required.” Nat'l Bus. Dev. Servs., Inc. v. Am.
Credit Educ. & Consulting Inc., 299 Fed.App'x
509, 512 (6th Cir. 2008). Showing plausible grounds means
pleading “enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence of [copyright
infringement].” Id. (internal citation
has pleaded one count of copyright infringement against 8
Degrees Plato. “The elements of a
copyright-infringement claim are (1) ownership of the
copyright by the plaintiff and (2) copying by the
defendant.” Zomba Enterprises, Inc. v. Panorama
Records, Inc., 491 F.3d 574, 581 (6th Cir. 2007).
Because direct evidence of copying is rare, a plaintiff may
establish “an inference of copying by showing (1)
access to the allegedly-infringed work by the defendant(s)
and (2) a substantial similarity between the two works at
issue.” Kohus v. Mariol, 328 F.3d 848, 854
(6th Cir.2003) (citation and quotation omitted). “[T]he
relationship between the degree of proof required for
similarity and access may be inversely proportional: where
the similarity between the two works is strong, less
compelling proof of access may suffice.” Stromback
v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004).
inverse relationship between access and similarity even
extends to cases where a plaintiff fails to adequately allege
access. If a plaintiff does not allege sufficient facts to
establish access, a copyright infringement claim can proceed
if the plaintiff pleads facts “showing a high degree of
similarity between the two works.” Bridgeport
Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 274
(6th Cir. 2009). The similarity must be
“striking.” Jones v. Blige, 558 F.3d
485, 491 (6th Cir. 2009). Striking similarity
“preclude[s] the possibility of independent
creation.” Murray Hill Publications, Inc. v.
Twentieth Century Fox Film Corp., 361 F.3d 312, 316 (6th
Cir. 2004) (internal citations omitted). To be sure,
“even in a striking similarity case, ‘[a]bsent
copying, there can be no infringement.'”
Id. (quoting Mazer v. Stein, 347 U.S. 201,
218 (1954)). Yet, “striking similarity carries the