Frerck v. John Wiley & Sons, Inc., No. 11 C 2727, Slip Op. (N.D. Ill. Feb. 2, 2012) (Dow, J.).
Judge Dow denied plaintiff’s motion for a preliminary injunction to prevent further alleged infringement of plaintiff’s photographs and denied defendant John Wiley & Sons’ motion to dismiss plaintiff’s fraud claim. There is not an automatic rule that ongoing copyright infringement warrants an injunction. Instead, plaintiff must meet its burden as to each factor.
Plaintiff showed a likelihood of success on the merits that: 1) he has copyrighted works; 2) John Wiley & Sons only had a limited right to use them; and 3) some were used without any license. But plaintiff could not show irreparable harm. Plaintiff was in the business of licensing photographs and any harm could be remedied with money damages. The Court did, however, note that plaintiff would be in a strong position to recover his attorneys’ fees should he succeed on the merits because of the ongoing nature of the alleged violation. But without irreparable harm, there could be no preliminary injunction.
Motion to Dismiss
Plaintiff’s fraud claim was premised upon request letters for plaintiff’s photographs and later uses of those photographs. The required intent to deceive was pled only on information and belief. Plaintiff’s contentions were “barely” sufficient, but were sufficient. It was not clear whether the alleged acts were just broken promises or intentional, fraudulent acts.