Decision Peta

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indirectly, the Infringing Materials or other works which incorporate the original, protectibleexpression of the Work . . . ." (Am end. Compl. at 11.) IDEA also seeks com pensation fordamages suffered as a result of PET A's allegedly infringing acts, and it seeks an award of allprofits derived from those acts in an am ount to be determined at trial. Id. In lieu of suchdamages and profits, IDEA requests, "where applicab le and should it so elect," an award ofstatutory damages with respect to each infringement under 17 U.S.C. $ 504(c). Id. IDEAdemands that PETA be direc ted to deliver to all materials which, if sold, distributed or used inany way, would violate the requested injunction. Id. Finally, IDEA seeks to recover from PETAall costs incurred in this action, including the reasonable attomey's fees incurred in connec tionwith IDEA's claim, together with such other relief as the C ourt may deem just and proper. Id. t11-12.

PETA m oves, pursuant to Rule 12(b)(6), Fed. R. Civ. P., t o dismissIDEA's claims for statutory damages and attomey's fees. For the reasons explained below,PETA 's motion is granted.'I. Background

The following facts are alleged in the First Amended Com plaint (the "AmendedComplaint") and accepted as true for purposes of this motion. All reasonable inferences aredrawn in the light most favorable to IDEA as the non -movant.

Not later than 1988, IDEA's co-founder, Marjorie Spiegel, authored an illustratedwork entitled "The Dreaded Comparison: Human and Animal Slavery." (Amend. Compl. 7 6. )A second edition of the work was published in 19 89 and the current, revised and expandededition was published in 1996. Id. The 1996 edition is still in print and rem ains commercially' PETA has als o asserted a counterclaim for declaratory judgment against IDEA and IDEA 's principal, MarjorieSpieg el. Answer to First Amended Complaint and Counterclaim for Declaration of Non -lnfinge men t (Dkt.N o . 18). The Court does not address PET A's counterclaim in this Order.


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available. Id. In addition to authoring the original textual matter for the W ork, Ms. Spiegelcreatively selected, coordinated and arranged certain illustrations, photographs and q uotesincluded in the W ork. Id. 7. The W ork also includes an original forward written by AliceWalker. Id. In 2006, IDEA , through its division, Mirror Book s, registered a copyright in theWork. Id. t Ex. A.

Subsequent to the Wo rk's publication in 1988, PETA and IDEA engaged innegotiations regarding PETA's proposal to reprint excerpts, to obtain m ultiple copies, or toreprint and distribute copies of the work in its entirety, but no agreemen t was ever reached. Id.15.

IDEA alleges that, "since at least 2005 and continuing through to the present,PETA has, without authorization from or attribution to IDEA, prepared, reproduced, distributedand publicly displayed certain textual and graph ical materials . .copied from and substantiallysimilar to protectible elements of the W ork." Id. 16. IDEA further alleges that PETA used itsinfringing materials: in a media cam paign entitled the "Animal L iberation Project," whichincludes a touring exhibit; in electronic versions featured on certain websites unde r PETA 'scontrol; in printed brochures and promotional m aterials; and in co nnection with adve rtising andfund-raising activities. Id. 17. IDEA contend s that, because the similarities between PETA'smaterial and the Wo rk are "neither fortuitous nor& minimis," PETA has infringed andcontinues to infringe upon IDE A's registered copyright in the Work. Id. 21-22.

Not later than August 3 1,2005, IDEA objected to PETA's use of the allegedinfringing materials and has comm unicated its continuing objection since that time. Id.7 23.Despite IDE A's objections, PETA has continued to reproduce, distribute and display theallegedly infringing materials. Id.


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11. Procedural HistoryIDEA commenced this action on July 8,20 08. (Dkt. No. 1 ) Prior to the initial

conference in this case, PETA 's counsel wrote to the Court seeking to file a motion precludingIDEA from obtaining statutory damages and attorney's fees because IDEA had not alleged in itscomplaint any new use of the copyrighted material after the date of registration, citing 17 U.S.C.9 412(2) and case law. (Letter of Roger L. Zissu, dated November 20,2 008.) At an initialpretrial conference on November 24 ,20 08 , and in view of PETA's arguments, the Court grantedIDEA leave to amend its complaint to allege post-registration acts of infringement. (Dkt. No.lo .) On January 7,200 9, IDEA filed the Amended Complaint, which added a single newparagraph alleging that PETA had "commenced new infringements . . since the effective date ofregistration of copyright in the Work . . ." (Amend. Compl. 7 20.) PETA moved to dismissIDEA'S claim for statutory damages and attorney's fees on February 6,20 09 . (Dkt. No. 15.)111. Discussion

A. Standards of ReviewTo survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain

sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."'Ashcroft v. Iabal,- .S. -, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Com. v.Twomblv, 550 U.S. 544 ,570 (2007)). In ruling on the sufficiency of a complaint, a court mustlimit its review to the facts and allegations that are contained in the complaint an d in "anydocuments that are either incorporated into the com plaint by reference or attached to thecomplaint as exhibits." Blue Tree Hotels Inv. (Canada). Ltd. v. Stanvood Hotels & ResortsWorldwide, Inc., 369 F.3d 212 ,21 7 (2d Cir. 2004).


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The Supreme Court has recently set out a "two-pronged" approach for courtsconsidering a mo tion lo dismiss. m, 29 S.Ct. at 1950. First, the Court must accept aplai ntiffs factual allegations as true and draw all reasonable inferences from those allegations inplaintiffs favor. Id. t 1949-50. The Court may then proceed to identify plead ings which,because they are no m ore than conclusions, are not entitled to the assum ption of truth. Id. t1950.

Second, the C ourt must determine whether the complaint's "well-pleaded factualallegations . . .plausibly give rise to an entitlem ent to relief." Id. "A claim has facial plausibilitywhen the plaintiff pleads factual content that allows the court to draw the reasonable inferencethat the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twom bly, 550 U.S.at 556). "The plausibility standard is not akin to a 'probability requirem ent,' but it asks for morethan a sheer possibility that a defendant has acted unlawfully." Id. Determining the plausibilityof a p laint iffs claim is a "context-specific task that requires the reviewing court to draw on itsjudicial experience and common sense." Id. citation omitted).

B. A~plicationSection 412 bars recovery of statutory damages and attorney's fees under $8 50 4

and 505 of the Copy right Act where an infringement "commenced after first publication of thework and before the effective date of its registration, unless such registration is made withinthree months after the first publication of the work." 17 U.S.C. $ 412(2). The Second Circuithas explained that, under this provision, "a plaintiff may no t recover statutory damages andattorney's fees for infringement occurring after registration if that infringement is part of anongoing series of infringing acts and the first act occurred before registration." See Troll Co. v.Uneeda Doll Co., 483 F.3d 150 , 158 (2d Cir. 2007) (applying judicial interpretations of section


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412 to construe Congressional use of the "continuing infringement doctrine"). To state a claimfor statutory damages and attorney 's fees, then, IDEA must allege new, post-registration acts ofinfringement by PETA. Id. t 158-59. In deciding whether IDEA's allega tions are sufficient tosatisfy this standard, the C ourt applies the two-pronged test set forth inm.

First, the Court accepts all of the factual allegations in the Amended Com plaint astrue and draws all reasonable inferences in IDEA's favor. Iqbal,129 S.Ct. at 1949-50. Legalconclusions in the Amended Com plaint that are unsupported by factual allegations are notentitled to the Cou rt's assumption of truth. Id. t 1950.

IDEA's origina l complaint made no mention of post-registration infringement byPETA. The C ourt granted IDEA leave to amend its original complaint so that IDEA couldproperly allege such infringement. In its Amended Com plaint, however, IDEA appears to havesimply restated the language of 17 U.S.C. 6 412 without alleging any facts to support its newallega tion that PETA comm itted post-registration infringements. (Amend. Compl. 7 20.) TheAmended C omplaint adds only a single new paragraph that states, in full:

Upon information and belief, PETA has commenced newinfringements, and prepared and exploited new and materiallydifferent Infringing Materials since the effective date ofregistration of copyright in the Work, which acts are not part of acontinuing, ongoing series of infringing acts of the same kind asthose engaged in by PETA prior to the effective date of reg istrationof the copyright in the Work, but instead are separateinfringements postdating the effective date of registration of thecopyright in the Work.(Amend. Compl.7 20.) Because there are no factual allegations to support this conclusoryaddition, IDEA 's allegation of post-registration infringement is not entitled to the assum ption oftruth. I& 129 S.Ct. at 1950.


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H aving com pleted u ' s irst step, the Court must next decide whether theAmended Comp laint's well-pleaded factual allegations "plausibly give rise to an entitlem ent torelief." Id. In order to state a facially plausible claim, the Amended Com plaint must include"factual content that allows the court to draw the reasonable inference that [PET A] is liable forthe misconduct alleged." Id. t 1949. With respect to IDEA's statutory damages claim, theAmended Complaint is devoid of such content-it contains only conclusory assertions and offersno factual allegations to support its theory that post-registration infringement occurred. ThisCourt is unable to say that there is "more than a sheer possibility" that PETA infringed thealleged copyr ight after the effective date of registration and that IDEA is therefore entitled to thestatutory award that it seeks. Id.

The C ourt concludes that the Amended Complaint fails to s tate a plausible claimfor statutory damages and attorney's fees under 17 U.S.C. $5 504 and 505. IDEA's claim forsuch an award must be dismissed.IV. Leave to Amend

In opposing PETA's m otion, IDEA has requested that it be given "the opportunityto replead in order to remedy any insufficiency identified by the Court." (IDEA Br. at 24.) TheFederal Rules of Civil Procedure provide that leave to amend should be "freely give[n] . . .whenjustice so requires." Fed. R. Civ. P. 15(a )(2). But the Court may deny such leave based on avariety of factors, including "undue delay, bad faith or dilatory motive on the part of the movant,repeated failure to cure deficiencies by am endments previously allowed, undue p rejudice to theopposing party by virtue of allowance of the amendment, [or] futility of the amendment." Local802, Associated Musicians of Greater New York v. Parker Meridien Hotel, 145 F.3d 8 5,8 9 (2d.Cir. 1998) (quoting Foman v. Davis, 371 U.S . 178, 182 (1962)). The Second Circuit has


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explained that "[wlhere it appears that granting leave to amend is unlikely to be productive . . itis not an abuse of discretion to deny leave to amend." Ruff010 v. Oupenheim er & Co., 987 F.2d129, 131 (2d Cir. 1993) (per curiam ) (citations om itted).

IDEA has not identified any additional facts that it would allege if leave to furtheramend were granted. IDEA was on notice of PETA 's arguments in the letter sent to the Courtbefore the initial pretrial conference. IDEA w as granted leave to amend to cure the noteddeficiency but failed to properly allege any facts that would allow this Court to infer theplausibility of its statutory damages claim. Accordingly, IDEA 's second request for leave toamend is denied.V. Conclusion

For the foregoing reasons, PETA's motion to dismiss IDEA 's c laim for statutorydamages and attorney's f ees under Rule 12(b)(6), Fed. R. Civ. P., is granted. Leave to amend isdenied.

SO ORDERED.

w P. Kevin C aste1United S tates District JudgeDated: New Y ork, NYAugust 28,2009

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Decision Peta