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Vrachovska v. Beacoz, L.L.C

United States District Court, E.D. Michigan, Southern Division

May 28, 2019

Nevena Tsevetanova Vrachovska, Plaintiff,
Beacoz L.L.C d/b/a 8 Degrees Plato Beer Company, Defendant.


          Sean F. Cox, United States District Court Judge.

         This is 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.[1] For the reasons below, the Court will deny the motion to dismiss.


         Plaintiff 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 Compl. ¶ 19.

         Defendant 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.

         On 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).


         I. Applicable Standard

         A 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).

         Although 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.

         “Copyright 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 omitted).

         II. Copyright Infringement

         Vrachovska 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).

         The 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 burdens ...

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