The opinion of the court was delivered by: Robert Patterson, Senior District Judge
On May 18, 2003, counsel for Defendants, The Parks Council, Parks 2001, Michael Klein, Elizabeth Cooke, Gerald Rosenberg and Peter Rothschild, with the consent of counsel for Plaintiff, requested the Court to render a decision whether Plaintiff's copyright claims against the individual Defendants stated a cause of action based on the briefs submitted on Defendants' motion to dismiss, granted on April 10, 2002, an issue the Court found unnecessary to decide.
Based on the briefs submitted to the Court, the Defendants' motion to dismiss the copyright claims against the individual defendants is denied. The amended complaint states with respect to each of the individual Defendants "[u]pon information and belief, [the individual defendant] participated in the decision to publish Plaintiff's copyrighted photographs." (Plaintiff's Complaint ¶¶ 32-35.) Defendants contend that "such conclusory allegations — devoid of any minimally sufficient factual predicate — fail to state a claim under the Copyright Act." (Defendants' Memorandum of Law in Support their Motion to Dismiss at 6.) Defendants fail to cite any authority for this argument.
It is well established that corporate officers acting with knowledge can be held liable for the infringing activity, if they induce, cause or materially contribute to the infringing conduct of another. Ez-Tixz. Inc. v. Hit-Tix. Inc., 919 F. Supp. 728, 732 (S.D.N.Y. 1996) (citing Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). Whether each of the individual Defendants' alleged personal participation in the decision to publish the Plaintiff's copyrighted photographs amounted to a material contribution would appear to be a jury question.
As for the requirement of acting with knowledge, from reading the amended complaint, it appears that the corporate Defendants have few employees and that publication of the copyrighted materials by the corporate Defendant may well require a joint decision of all the individual Defendants. Accordingly, since Defendants Cooke and Klein are alleged to have actual knowledge based on their conversation with the Plaintiff on July 27, 2001, which was over a month prior to the publication of the Plaintiff's copyrighted photographs (Plaintiff's Complaint ¶¶ 25, 29), constructive knowledge of the alleged infringement by the other two individual Defendants may be implied under the allegations of the complaint. Constructive knowledge of copyright infringement by a person participating in the decision to publish is sufficient to establish liability. See R & R Recreation Products. Inc. v. Joan Cooke Inc., No 91 Civ. 2589, 1992 WL 88171 at 3 (S.D.N.Y. Apr. 14, 1992).
Defendants' motion to dismiss the copyright claims against the individual Defendants is denied.
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