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Warren v. John Wiley & Sons, Inc.

United States District Court, S.D. New York

July 2, 2013

WILLIAM J. WARREN, Plaintiff,
v.
JOHN WILEY & SONS, INC., Defendant. LAURIE RUBIN, Plaintiff, JOHN WILEY & SONS, INC., WILLIAM ZERTER, HILLARY NEWMAN, and JOHN DOES 1-10, Defendants. DAVID YOUNG-WOLFF, Plaintiff, JOHN WILEY & SONS, INC., Defendant

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[Copyrighted Material Omitted]

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For Laurie Rubin, Plaintiff (1:12-cv-05071-JPO-MHD): Danial A. Nelson, Kevin Patrick McCulloch, Nelson & McCulloch LLP, New York, NY.

For John Wiley & Sons, Inc., William Zerter, Hilary Newman, Defendants (1:12-cv-05071-JPO-MHD): Anna Kadyshevich, Beth Ilana Goldman, Edward Henry Rosenthal, LEAD ATTORNEYS, Frankfurt Kurnit Klein & Selz, PC; Christopher Perry Beall, Robert Penchina, LEAD ATTORNEYS, Levine, Sullivan, Koch & Schulz, LLP(NYC), New York, NY.

For David Young-Wolff, Plaintiff (1:12-cv-05230-JPO-MHD): Danial A. Nelson, Kevin Patrick McCulloch, Nelson & McCulloch LLP, New York, NY.

For John Wiley & Sons, Inc., Defendant (1:12-cv-05230-JPO-MHD): Anna Kadyshevich, Beth Ilana Goldman, Edward Henry Rosenthal, LEAD ATTORNEYS, Frankfurt Kurnit Klein & Selz, P.C., New York, NY; Christopher Perry Beall, Robert Penchina, LEAD ATTORNEYS, Levine, Sullivan, Koch & Schulz, LLP(NYC), New York, NY.

For David Young-Wolff, Plaintiff (1:12-cv-05070-JPO-MHD): Danial A. Nelson, Kevin Patrick McCulloch, Nelson & McCulloch LLP, New York, NY.

For John Wiley & Sons, Inc., Defendant (1:12-cv-05070-JPO-MHD): Anna Kadyshevich, Beth Ilana Goldman, Edward Henry Rosenthal, LEAD ATTORNEYS, Frankfurt Kurnit Klein & Selz, P.C., New York, NY; Christopher Perry Beall, Robert Penchina, Levine, Sullivan, Koch & Schulz, LLP(NYC), New York, NY.

OPINION

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OPINION AND ORDER

J. PAUL OETKEN, United States District Judge.

William J. Warren, Laurie Rubin, and David Young-Wolff bring separate actions against John Wiley & Sons, Inc. (" Wiley" ) for copyright infringement and related claims. Rubin's action is also against William Zerter and Hilary Newman (employees of Wiley), and John Does 1-10 (" the Printer Defendants" ). Defendants now move to dismiss these actions for failure to state a claim, pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure.[1] For the reasons that follow, the motions to dismiss are granted in part and denied in part.

I. Background

A. Factual Background

The following facts are taken from Plaintiffs' Complaints and are presumed true for purposes of this motion.

1. The Parties

Warren, Rubin, and Young-Wolff are professional photographers who make their living by taking and licensing photographs.

Wiley is a publisher of textbooks, professional and trade books, and scholarly journals.

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Zerter is the Vice President of Finance and Operations of the Global Education Division at Wiley.

Newman is the Manager of the Photo Department of the Global Education Division at Wiley.

The Printer Defendants are yet-to-be ascertained printing companies engaged by Wiley to print infringing publications.

2. The Warren Action

Warren's lawsuit (" the Warren Action" ) alleges copyright infringement and fraud.

Warren is the creator and owner of a photograph known as " Executives Silhouetted." Warren has provided a copy of the picture but has not included a registration number in his Complaint or appended a copyright certificate thereto. Wiley obtained a copy of " Executives Silhouetted" through Plaintiff's licensing agent, Corbis Corporation (" Corbis" ), and later used it on the cover of a book entitled " The Five Dysfunctions of a Team: A Leadership Fable," by the business author Patrick Lencioni.

3. The Young-Wolff Action

Young-Wolff has also sued Wiley (" the Young-Wolff Action" ), alleging copyright infringement, fraud, fraudulent concealment, breach of contract, and copyright exportation.

Young-Wolff alleges that Wiley has infringed seventeen of Young-Wolff's photographs. Young-Wolff has provided a copyright registration numbers for each photograph.

Wiley has entered into hundreds of license agreements with unnamed licensing agents regarding photographs owned by Young-Wolff, each requiring Wiley to disclose usage information upon request, which Wiley has purportedly failed to do. Young-Wolff alleges that Wiley breached these contracts by exceeding the usage provided for in the licenses, by publishing the photographs prior to the start date of the licenses, and/or by failing to disclose usage information. Young-Wolff also alleges that Wiley published Young-Wolff 's photographs in publication that Wiley willfully exported to foreign countries without permission from Young-Wolff .

4. The Rubin Action

In her lawsuit (" the Rubin Action" ), Rubin alleges that Wiley, Newman, and Zerter engaged in copyright infringement, fraud, and fraudulent concealment, and that Wiley engaged in infringing exportation.

Rubin alleges that she registered the copyright for the photograph at issue, " Burnt Toast," with the U.S. Copyright Office, but she has failed to include a registration number or copyright certificate showing ownership of the photograph.

Prior to March 3, 2000, an unnamed Wiley photo editor contacted Rubin asking her to use " Burnt Toast" for a textbook entitled " Fundamentals of Physics, 6th edition" (" the Sixth Edition" ).

Rubin provided Wiley a limited license to use the photograph to print 100,000 copies of the Sixth Edition to be printed in English only. This license was solely for distribution of the Sixth Edition in the United States. Defendants have published well in excess of 100,000 copies of the photograph and have published multiple foreign editions, totaling 627,639 copies of the textbook.

5. Allegations Regarding Wiley's Willful and Fraudulent Conduct

In each of the three above-mentioned actions, Plaintiffs allege that Wiley's willfulness can be inferred from Wiley's history of violating licenses. Plaintiffs also allege that Wiley made misrepresentations and concealed its impermissible use of

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Plaintiffs' photographs, in order to obtain licenses ...


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