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Grecco v. Associated Press

United States District Court, S.D. New York

July 7, 2017


          OPINION & ORDER

          VALERIE CAPRONI, United States District Judge.

         Plaintiff Michael Grecco brings this action against Associated Press (“AP”), Hearst Communications, Inc., Hearst Seattle Media, LLC, Telegraph Media Group Limited and other John Doe publishers (collectively, “Defendants”)[1] for copyright infringement and related claims. Associated Press, joined by Hearst Communications, Inc., and Hearst Seattle Media, LLC, move pursuant to Federal Rule of Civil Procedure 12(c) for a partial judgment on the pleadings that dismisses Plaintiff's claims for statutory damages and attorney's fees associated with his claim for copyright infringement and dismisses his request for a declaratory judgment. Dkt. 45. For the following reasons, Defendants' motion is DENIED relative to Plaintiff's copyright infringement claims and GRANTED as to Plaintiff's declaratory judgment claim.


         Plaintiff is a professional photographer who creates and licenses photographs. FAC ¶ 4.[3]Plaintiff alleges that he created and owns all copyright in a behind-the-scenes photograph from the television show “Xena: Warrior Princess” (hereafter the “Xena photograph”). FAC 21. Defendant AP is a news cooperative of over 1, 400 newspapers and media organizations, and Defendants Hearst Communications, Inc. and Hearst Seattle Media, LLC (“Hearst Defendants”) own and operate digital publications. FAC ¶¶ 5-7.

         The First Amended Complaint is curiously devoid of facts that one would normally expect to see in such a complaint, such as the date on which the copyright was registered and the date (or at least the approximate date) on which the work was licensed. Plaintiff acknowledges that AP received copies of the Xena photograph “for a limited purpose many years ago” but alleges that it maintained an unauthorized copy in its archive. FAC ¶ 25. Plaintiff alleges that AP distributed the Xena photograph to its wire service subscribers, including the Hearst Defendants, and that neither AP nor the Hearst Defendants had permission to maintain a copy of, distribute or publish the Xena photograph. FAC ¶¶ 22-27, 31-32. Plaintiff alleges that the Xena photograph was published on the Hearst Defendants' and other publishers' websites, attaching to his Complaint screenshots from those websites that appear to include the Xena photograph. FAC ¶ 22; FAC Ex. 1. Plaintiff further alleges that on some unspecified date in some unspecified context, AP agreed to direct its customers and subscribers to cease using and to remove from their archives any of Plaintiff's photographs, but that AP had failed to send any such directive. FAC ¶¶ 55-56.

         In addition to claims of copyright infringement (Counts I and II), Plaintiff seeks a declaratory judgment (Count III) that: AP may not maintain or distribute any of Plaintiff's photographs; compels AP to disclose the recipients of Plaintiff's photographs; and requires AP to issue a directive removing all of Plaintiff's photographs from its customers' and subscribers' archive files.

         Defendants move for judgment on the pleadings pursuant to Rule 12(c), arguing that Plaintiff is not entitled to statutory damages or attorneys' fees under the Copyright Act because any alleged infringement began prior to copyright registration. Defendants also argue that this Court lacks subject matter jurisdiction over Plaintiff's claim seeking a declaratory judgment. Plaintiff argues that the Court cannot determine when any infringement began from the pleadings and that the Court may exercise supplemental jurisdiction over the declaratory judgment claim. For the following reasons, the motion is denied in part and granted in part.


         “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). To survive a 12(c) motion, the plaintiff must plead sufficient facts “to state a claim that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the complaint must contain factual allegations amounting to “more than an unadorned, the-defendant-unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         I. Materials Considered on a Rule 12(c) Motion

         In adjudicating a Rule 12(c) motion, the court examines the complaint, the answer, any written documents attached to them, and any items of which the court may take judicial notice. L-7 Designs, Inc. v. Old Navy LLC, 647 F.3d 419, 422 (2d Cir. 2011). A court may consider a document that is not attached as an exhibit to a pleading or incorporated by reference into the complaint if the complaint “‘relies heavily upon [the document's] terms and effect, ' thereby rendering the document ‘integral' to the complaint.” DiFolco v. MSNBC Cable, LLC, 622 F.3d 104, 111 (2d Cir. 2010) (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). In other words, the extrinsic document must be “integral to [the Plaintiff's] ability to pursue” a claim in order to be incorporated into the complaint. Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).

         In support of its motion, Defendants filed the Declaration of Andrew Deutsch in Support of Motion for Judgment on the Pleadings (“Deutsch Declaration”). The Deutsch Declaration attaches: a series of emails exchanged between Deutsch and Kevin McCulloch, attorney for Plaintiff; a reproduction of a 1997 newspaper article featuring the Xena photograph; and the copyright registration of the Xena photograph. Deutsch Decl., Ex. 1-7. AP argues that these documents demonstrate that Defendant AP began any alleged infringement of Plaintiff's copyright prior to its registration. Def. Mem. at 10; Deutsch Decl. Ex. 7.

         The Court declines to consider the emails attached to the Deutsch Declaration in connection with this motion. The emails are neither incorporated by reference into the Amended Complaint, nor are they integral to Plaintiff's claims. Defendant argues that language in Plaintiff's Amended Complaint implies that Plaintiff relied on the emails in framing the complaint, Def. Mem. at 9-10, but “[l]imited quotation from or reference to documents . . . is not enough to incorporate those documents, wholesale, into the complaint.” Sira, 380 F.3d at 67.

         The Court, however, may take judicial notice of the 1997 article and the copyright registration. A court may take judicial notice of any fact that “is not subject to reasonable dispute” and “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b)(2). In addition, a court may “take judicial notice of the fact that press coverage . . . contained certain information, without regard to the truth of their contents.” Staehr v. Hartford Fin. Services Grp., ...

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