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Senisi v. John Wiley & Sons, Inc.

United States District Court, S.D. New York

March 28, 2014

ELLEN SENISI et al., Plaintiffs,
JOHN WILEY & SONS, INC., Defendant.



Defendant John Wiley & Sons, Inc. ("Defendant" or "Wiley"), a publisher of academic, scientific and educational journals and books, including textbooks, moves, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss the Amended Complaint of Plaintiffs Ellen Senisi ("Senisi"), Laura Dwight ("Dwight"), Louis Psihoyos ("Psihoyos"), Norbert Wu ("Wu"), Mark Gibson ("Gibson"), Hazel Hankin ("Hankin") and the Estate of Michael Newman ("Newman Estate") (collectively, "Plaintiffs"). Four of the Plaintiffs, who are the owners of copyrights to numerous photographs, have sued Wiley for copyright infringement. In their Amended Complaint, [1] all Plaintiffs also seek a declaration, pursuant to the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq., that Plaintiffs, as copyright owners of works previously used and currently being used by Wiley, are entitled to an audit or accounting of all of Wiley's uses of all of Plaintiffs' works. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1338(a) and 1367. The Court has considered the parties' submissions and arguments. For the following reasons, the Court grants Wiley's motion to dismiss the Amended Complaint, without prejudice to the renewal of certain claims.


The following facts are alleged in the Amended Complaint. Plaintiffs are six professional photographers and the estate of a deceased photographer, Michael Newman. Plaintiffs license their photographs to end-users both directly and through various licensing agreements with third-party agencies or "stock photo agencies." (Am. Compl. ¶¶ 14, 36, 67, 71.)[2] Wiley obtains photographs for its publications under direct licenses with photographers and under indirect licenses through stock photo agencies. (Id. ¶¶ 34, 36, 67.)

Plaintiffs allege that they own the copyrights in "hundreds of images" licensed to Wiley "for limited and specific uses." (Id. ¶¶ 13, 31.) According to Plaintiffs, all of the licenses that were issued to Wiley were "Rights Managed, " meaning that Wiley could only use Plaintiffs' photographs in limited ways and that the license fees were calculated based on the limited rights being granted. (Id. ¶¶ 33, 37.) Plaintiffs further allege that the licenses issued by the stock photo agencies included express audit or certification provisions obliging Wiley to disclose information regarding the use of any licensed photographs and that Plaintiffs were the direct and intended beneficiaries of these licensing agreements. (Id. ¶¶ 70-73.) Plaintiffs claim that Wiley has been sued for numerous copyright infringement and license violations that are "identical" to those alleged here. (Am. Compl. ¶¶ 19-30.) The Amended Complaint alleges that, "[g]iven the growing evidence of Wiley's history of copyright infringements, Plaintiffs became concerned and reasonably suspected that Wiley similarly violated the terms of licenses governing its limited right to use Plaintiffs' photos, including both the licenses issued directly by Plaintiffs and licenses issued indirectly by their agents." (Id. ¶ 39.) Plaintiffs further contend that "Wiley remains in sole possession of the information necessary to determine the actual uses that it made of each photo including whether it exceeded the limitations of its licenses, " but that Wiley has not disclosed any usage information to them. (Id. ¶¶ 44-50.) According to Plaintiffs, they need this information in order to manage the licensing of their photographs to other clients. (Id. ¶¶ 51-53.)

In the Amended Complaint, Plaintiffs allege generally, "upon information and belief, " that Wiley routinely exceeded and continues to exceed license limitations and infringes Plaintiffs' copyrights by, inter alia, publishing photographs without permission; reusing Plaintiffs' photographs without obtaining a valid license prior to publication; exceeding the scope of the licenses by printing more copies than authorized; publishing Plaintiffs' works in electronic, ancillary, foreign or derivative publications without permission; and refusing to provide usage information to Plaintiffs. (Id. ¶¶ 23, 86, 111-115.)

Four of the Plaintiffs assert copyright infringement claims against Wiley, which are related to the photographs identified in Exhibits 7 through 10 attached to the Amended Complaint. (Am. Compl. ¶¶ 108-109.) Plaintiffs allege generally that they registered their copyrights with the U.S. Copyright Office, but do not provide registration numbers or registration dates. (Id. ¶ 110.) Exhibits 7 through 10[3] are spreadsheets titled "Photos known to be Published by John Wiley Sons, Inc. [sic], " which list photographs owned by Plaintiffs Senisi, Dwight, Psihoyos, and Wu.[4] These exhibits contain information identifying the photographs (either by image number or description), information relating to the publication in which the photograph was allegedly published, and information relating to the terms of the licensing agreement or lack thereof. (See Am. Compl., Exs. 7-10.)[5] No photographs are attributed to Hankin or the Newman Estate, neither of which is asserting copyright infringement claims at this time. (Id. ¶ 108.) Plaintiffs assert that "[a] reasonable opportunity for further investigation and discovery will confirm that Defendants [sic] also has infringed other copyrighted works created and owned by Plaintiffs." (Id. ¶ 87.)

In Count I of the Amended Complaint, Plaintiffs Senisi, Dwight, Psihoyos and Wu assert claims for copyright infringement, alleging that Wiley willfully violated their copyrights in the works identified in Exhibits 7 through 10 by exploiting the works in various ways that exceeded the scope of limited licenses, and by making unlicensed use of the works. These Plaintiffs seek injunctive relief precluding Wiley from copying, displaying, distributing, advertising and/or selling the infringing publications identified within the Amended Complaint. (Id. ¶¶ 107-121.) In Count II of the Amended Complaint, all Plaintiffs demand that Wiley disclose all of the uses that it has made of their photographs. (Id. ¶¶ 43-49, 121-131.) Plaintiffs assert that Wiley's failure to disclose this information is "a distinct violation of Plaintiffs' copyrights, " a breach of their direct licensing agreements with Wiley and a breach of the licenses issued by the stock photo agencies, which allegedly require that Wiley disclose information regarding the use of any licensed content. (Id. ¶¶ 63, 73, 75, 123-128.) Claiming that there is "an actual controversy" as to whether Plaintiffs are entitled to obtain such information from Defendants, Plaintiffs seek a declaration "of their rights to know and to be provided information regarding what uses Defendant has made and is making of their creative works." (Id. ¶¶ 128, 129.)

In its motion, Wiley asserts that Plaintiffs' copyright infringement claims are insufficiently pleaded and that, to the extent any of the claims is properly pleaded, each Plaintiff's claims should be severed from those of the others. As to the declaratory judgment claim asserted in Count II, Wiley contends that the court lacks federal question subject matter jurisdiction and the claim fails on its merits because the disclosure right that Plaintiffs assert under the Copyright Act is non-existent, and that the claim fails on its merits to the extent it is asserted pursuant to contracts because Plaintiffs have failed to plead the relevant terms of any of the contracts.


Under Federal Rule of Civil Procedure 12(b)(6), to survive a motion to dismiss, a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the plaintiff must allege "more than a sheer possibility that a defendant has acted unlawfully;" "the plaintiff [must] plead[] 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, 678 (2009). In deciding a motion to dismiss, the court "must accept as true all of the factual allegations set out in plaintiff's complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally." Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007) (internal quotation marks and citation omitted). "However, [c]onclusory allegations or legal conclusions masquerading as factual conclusions' will not withstand dismissal." Jacobs v. Carnival Corp., No. 06 Civ. 0606, 2009 WL 856637, at *3 (S.D.N.Y. March 25, 2009) (citation omitted; alteration in original).

Under the Declaratory Judgment Act, 28 U.S.C. § 2201, the Court has subject matter jurisdiction of a matter "only if there would exist a basis for federal jurisdiction in a coercive action between the two parties." Ariel UK Ltd. v. Reuters Grp. PLC, No. 05 Civ. 9646(JFK), 2006 WL 3161467, at *10 (S.D.N.Y. Oct. 31, 2006), aff'd, 277 F.Appx. 43 (2d Cir. 2008). A plaintiff must also have standing to bring a claim under the Declaratory Judgment Act. Velvet Underground v. Andy Warhol Found for the Visual Arts, 890 F.Supp.2d 398, 403-04 (S.D.N.Y. 2012). Where a motion to dismiss for lack of subject matter jurisdiction is brought under Federal Rule of Civil Procedure 12(b)(1), the court must accept factual allegations in the complaint as true, but it need not draw inferences favorable to the plaintiff. J.S. ex. Rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).

Count I - Copyright Infringement Claims

Wiley moves to dismiss Plaintiffs' copyright infringement claims, arguing that the Amended Complaint has not plausibly alleged facts framing their claims for copyright infringement. "In order to state a claim for copyright infringement a plaintiff must allege 1) which specific original works are the subject of the copyright claim, 2) that plaintiff owns copyrights in those works, 3) that the copyrights have been registered in accordance with the statute, and (4) by what acts during what time the defendant infringed the copyright." Palmer Kane LLC v. Scholastic Corp., No. 12 Civ. 3890, 2013 WL 709276, at *2 (S.D.N.Y. Feb. 27, 2013) (internal quotation marks and citation omitted). "[B]road, sweeping allegations ...

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